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TREATISE

ON

THE LAW

OF THE

$rerogatfoe* of tfje Croton;

AND THE

RELATIVE DUTIES AND RIGHTS OF THE SUBJECT,

By JOSEPH CHITTY, JUN. Esq.

OF THE MIDDLE TEMPLE.

fcotrtJmt :

PRINTED FOR JOSEPH BUTTERWORTH AND SON,

LAW BOOKSELLERS, 43, FLEET STREET;

AND JOHN COOKE, ORMOND QUAY, DUBLIN.

• 1830*

g. W00M1U, *H!Hr(B, VKHE^COVHT, UlNNKR-miET, I.ORUOK.

PREFACE.

It may be matter of surprise, that in a country
in which the public eye has ever minutely watched
the progress of authority, a subject of such in-
teresting importance as the " Prerogatives of the
Crown/' should not have elicited the most extensive
and learned investigation* Whilst under some go-
vernments an attempt to discuss the limits of the
royal power, would expose the presumptuous sub-
ject to the jealous apprehensions of tyranny, English
history points out but few instances of periods in
which the disclosure would have been dangerous;
and the British constitution allows of none : it rather
invites than represses the inquiry. For in this coun-
try, the relation of sovereign and subject combines
reciprocal duties. The prerogative is not the iron
tie of unbridled power : it holds the subject in the
silken chain of mild subjection, for the general and
permanent welfare of society ; and as a general prin-
ciple it affords the sovereign the liberty of restraint,
only when the public good is the object in view.
As the powers and rights of the King are inseparably
connected with the dearest rights and liberties of his
people; as their interests and their obligations are

IV PREFACE.

mutual ; it is incumbent on the subject, desirous of
knowing his own duties and rights, to ascertain the
exact extent and limits of the duties and prerogatives
of his Sovereign. Indeed so intimately, yet beautifully,
are they interwoven, that in discussing the latter, the
former must necessarily be considered.

That a treatise on this subject is important, both to
the public and the profession, needs no comment.
That system of jurisprudence on which the prerogative
i^ founded, will be duly appreciated and valued by
every one aware of its wisdom and merits ; which
will become more apparent, the more they are can-
vassed and investigated.

The Author of the following pages has attempted
to present a comprehensive and connected, yet com-
pressed and logical, view of every prerogative and
corresponding right of the subject ; but is con-
scious of the imperfect manner in which the at-
tempt has been executed. If, however, imperfec-
tions admit of excuses, the kind, the candid, and
the considerate, will find many for the first work on
so difficult, so extensive, and so noble a subject. The
materials were indiscriminately scattered, or superfici-
ally noticed in the law-books, from whence alone the
author was able to obtain information. It was frequently
necessary to resort to the most antient text-writers, and
judicial determinations, and in using such, the idea of
overlooking more recent, and, perhaps, dissimilar autho-
rities, could not but add the anxiety of being incor-
rect, to the labor of discovering and selecting the

7

ANALYSIS.

CHAP. L

Page

Origin of Society 1

Legislative and Executive Authorities . . 2

Principles of the Constitution as to the Royal Power 3

The King's Attributes or Political Power . • 4
His Prerogative in general • . .6

Boundaries and restraints • 7
Who, in legal contemplation, is entitled to exercise the

Prerogatives ..... 9

CHAP. II.

Sect. 1. Of the King's Right to Allegiance; from

whom due • • . .12

2. Of the Nature and Extent of Allegiance, and

of taking the Oaths of Allegiance • 15

3. Of such Rights of the King over the Per-

sons of his Subjects, as more immediately

result from the Allegiance and Submis-
sion due from them • .18

CHAP. III.

Where the Prerogatives are exerciseable ; and herein
of the Prerogative, as it respects the British Co-
lonies • . . • , 25

viii ANALYSIS.

CHAP. IV.

Of the Prerogative as it more immediately relates to
independent states and foreign matters.

Sect.

1.
2.

In general ... -
As to Ambassadors, &c«

F»ge

39

40

3.
4.
5.

Of Letters of Marque and Reprisals
Of making War and Peace ...
Of other Rights incident to the War Prerogative
The Militia .

. ibid.
43
44
4$

The Army f t
The Fleet .

ibid*
46

«

Pressing

Of Aliens coming into the Country

Other Right*

ibid.
48
49

CHAP. V.

Of the King as the Head of the National Church.
The Supremacy of the Crown . .50

Ecclesiastical Laws; and Powers of the Crown respecting Con-
vocations, or Synods . , .51
Ecclesiastical Laws under the King's Controul, Protection, &c. 53
Of the King as the dernier resort in Ecclesiastical Causes • 55
Prerogative as to the disposal of Church Preferments, &c. . 57
Custody of Temporalities 63
Corodies . 65
Tithes, First Fruits, and Tenths, &c. . . . 65, 6

CHAP. VI.

Of the Prerogative with respect to the Houses of Par-
liament , . « . .67

ANALYSIS. ix

CHAP. VII.

Of the King as the Fountain of Justice and Office, and
Administrator of the Laws. ' '

• * •

Sactv 1. In general ; and as to Public Courts and Qffioes, and

Page

. i .

Officers, . . . . .75

- v

2. As to Pardons, Reprieves, &c.

1. In general • .88

2. When and how far the King may pardon,

and of Dispensations, Non Obstante* and

Reprieves . ... 90

3. Manner of pardoning . . 98

4. Bflfect of a Pardon 103

3. As to Gaols .... 103

4. Of Royal Proclamations.

1. In general; and when they are legal • 104

2. Proclamations, how made . , 106

3. Consequences of disobedience to a Procla-
mation . . . ' . 107

+ .. *«

«j v ~%.

CHAP. Vlrt.

Of the King as the Fountain of Honours, Dignities,
Privileges, and Franchises ; and the nature of them.

Sect. 1. Peerage and grants thereof— Degrees of — How cre-
ated— Descent of— -Precedence, &c.-— How extin-
guished—lost, &c— Other honours.— -the Commons.
Privileges, &c* '. 107

2. Franchises, in general . . .118

1. Counties Palatine, Cinque Ports, &c. and
Counties Corporate .. . . .119

2. Corporations . . . 120

3. Game Franchises; and herein of the King's

Prerogative as to Game and of Forests . 133

4. Free Chases • • .140

5. Parks . . . ibid.

Sect. 1.

ANALYSIS.

6.

pre© Warrens ■

7.

Fisheries and Fish

8.

Mines .

9.

Fairs and Markets

10.

Waifs

11.

Wrecks

4

12.

Estrays

13.

Treasure trove

14.

Deodands

CHAP. IX.

Of the King as Parens P atria.

2.

As to

1. Infants
S. Idiots
3. Lunatics
As to Charities

Page
141
142
145
193
146
148
151

152
153

155
157
159
161

CHAP. X*

Of the Prerogative as to Commerce.

Sect. 1. Foreign Commerce; Freedom of, and how far under .

royal Controul . • • .162

•Gamut* • * . . 170
Dispensations by licences and orders in council from

the eflect of war on Commerce, && . ibid.

Prohibition '. V . • ibid.

Embargoes • • • • 172

1 Dectah^ohaof^Cohtfttband • . . ibid.

Sovereignty over the 'Setts • 173

Ports and Havens . » . 174
Beacons and Lighthouses -■ .175
Seer. % Of the Prerogative with respect to Domestic Com-
merce or Internal Trade.

>-.' 1- Monopolies and Patents for Inventions 176

AKALYSJS.

1. For what inventions Patents may be granted

2. Who is to be considered the jnventorn

3. The description of the Invention* in the spe-

cification • i

4. How a Patent is obtained « - . •

5. The Remedies for the Infraction of the Pa-

tent Rights

6. How the Patent may be vacated

2. Marts and Fairs

3. Weights and Measures

4. As to Money, Coin, &c. •

1. The Materials ' •

2. The Impression

3. The Denomination or Value

Page
178
181

182
188

191

193
ibid.

196
ibid,
ibid*

197
ibid*

CHAP. XI.

Of the Prerogatives as to the Revenue.
In general •

199

200, 2

Sect. 1. Ordinary and Inherent

1. Ecclesiastical.

Custody of the Temporalities of Bishop—
Coflriies -~ extrarpawJwU Tithes -^n first
Fruits and Tenths • . .

2. Prom immediate Crown Possessions and Bights.
- 1. Demesne land* and Profit* thereof

2. Antient Rights of Seignory . ,

3. Forfeitures for Offences.

1. General Considerations »

2. Withf^peottotkOJbidelr'sKealiy 216

3. His Personalty . « .222

4. Escheats . . , w 226

5. Profits from Courta of Justice . 236

6. Aa Guardian of Idiola, &c . 237

3. From Royal Fraitfhttes, &c. , - » ibid.
2. Astotbee^iwrAaary^ven^ol^GWwn . ibid.

202

202
211

213

XJU

ANALYSIS.

3. Other Crown Property.
Antient Jewels, &c.
Prerogative Copyright .
Nature of Crown Property
Devise of, &c.

Page

238

ibid.

241

242

CHAP. XII.

Of the Prerogative with respect to Judicial Remedies
and Proceedings at the Suit of the Crown.
In general ...... 243

Sect. 1.
2.

By the usual Common Law Actions
By Inquisitions or Inquest of Office
And herein also of Extents
In general

245
. ibid.

262

Sect. 1.

2.

3.

5.

6.

Part I. — Extents in Chief.

Commission to find Debts and Iuquisition there-
on ; and herein of Debts due to the Crown . . 265

Of the scire facias to justify the issuing of the
Extent in Chief . . \ .271

Form. — Teste. — The issuing and return, &c. of

Extents in Chief . • .273

When an immediate Extent may issue — Affi-
davit to obtain it ; and Fiat thereon . • 277

Execution of Extent in Chief.

1. In general .... 280

2. What may be taken.

Body . .282

Goods and Sums of Money 284

Laud* . . . .293

Debts and Credits . .303

And herein of seizing Debts, Specialties, and
Credits due to the Crown Debtor: And
of Extents in Chief* in : the second de-
gree, i. e. against Benton* to the Crown
Debtor, &c. . . « . - . • . . . 303

ANALYSIS. xiii

[Resisting Extents and Proceedings thereon.— -Ch. XIII.]

Page

7. Venditioni exponas — Order for Sale of defend-

ant's Lands, &c. . % . SOT

8. Costs ...... 310

9. Poundage ...... 312

Part 11.— Of Extents in Aid.

Sect. 1. In general. — The course of proceeding 317

2. To what degrees Debts may be seized on Ex-

tents in Aid . 318

3. What Crown Debtor may issue an Extent in

Aid .... . ibid.

4. For what sum an Extent in Aid may be is-

sued.— Affidavit, and Bat 390

5. Form of — What may be taken — Motions—

Pleading-* Costs—- Poundage, &c. 325

Sect. 3. Scire Facias to repeal grants, &c. . 330

4. By Information

1. Of intrusion .... 332

2. Of debt . . . .335

3. In rem . . ibid.

5. ~ Quo xbarranto. 336

6. Mandamus .... SS8

CHAP. XIII.

Of obtaining Redress from the Crown.

In general .... • S39

Sect. 1. Petition of Right . • .340

2. Monstrous de droit 352

' 3. . Traverse of Oflfice . .356
And herein of resisting Extents.

xir ANALYSIS.

Pajc

1.

Appearing to Extents, and claiming

property ....

358

2.

Motions to set aside Extents — To pay

money, &c. ....

362

3.

Pleadings on Extents, &c.

365

4.

Trial, and proceedings incident thereto

370

5.

Judgment ....

S72

6.

Execution . . .

373

7.

Error • ...

ibid.

CHAP. XIV.

Of the Privileges and Incapacities of the King in seve-
ral matters ..... 374

CHAP. XV.

What Statutes bind the King . . .382

CHAP. XVI.
Of Grants from the King.

Sect. 1. What the King may grant, and what he may not 384

2. How Grants from, and to, the King are to be

effected ..... 389

3. Construction of . . .391
And when void for

1. Uncertainty .... 394

2. Misrecitals ; and herein of false sugges-

tions or deceit . 396

4. Of the Rights and Liabilities of the Grantee . 399

5. Of revoking or avoiding the Grant . . 400

CHAP. XVII.

Of the King's Family and Councils.

Sect. 1. The Royal Family .

1, The Queen ... .401

ANALYSIS.

1. Queen Regent ,
3. Queen Consort .

3. Queen Dowager

2. The eldest Son or Daughter

3. The other Royal Children
Sect* 2. The King's Councils,

1. Parliament

7* IrCCrS * , t

3. The Judges

4. The Privy Council

Page
401

ibid.
403
ibid.
405

408
ibid.

409
ibid.

* / 1

.'»

•.«. i

TREATISE

OK THE

LEGAL PREROGATIVES

OV THS

CROWN.

CHAPTER L

Origin qf-Society. — Legislative and Executive Authori-
ties.— Principles of the Constitution as to the Royal
Power. — The King's Attributes or Political Charac-
ter.— His Prerogative in general. — Boundaries and
Restraints. — Who, in legal contemplation, is entitled
to exercise the Prerogatives.

Conscious of his infirmities, man has ever been inclined to
associate with his fellow-creatures, for the purposes of mutual
preservation, comfort, and protection. The social feeling is
so firmly rooted in the human heart by nature, and confirmed
by an enjoyment of the blessings it imparts, that even the fe-
rocity of the savage is restrained by its dictates. To this sen-
timent communities or assemblages of men owe their origin.
These soon became attached to each other, and to that spot
on which they had imbibed their first impressions, and formed
their earliest habits. The most barbarous of the human race
have their tribes, and exercise within the limits of their own
circles, the native affections and good feelings of the heart.

The outlines of society were, however, very imperfect. The
earliest assemblages of .men were satisfied if their union sup-
plied their immediate necessities, and ensured their personal
security. They were regardless, because they were ignorant,
of the advantages resulting from civilization, from good or-
der, and good government As, however, mankind increased,

b and

2 Legislative and Executive Authorities. [Ch. I.

and his intellect expanded, the necessity of establishing a sys-
tem of laws and subordination, and of placing somewhere the
power of commanding and enforcing obedience, became appa-
rent. In the rudeness of his uncultivated sense, man ever
adopts the most obvious means. Simple rules of action were
adopted; and he whose superior prowess in battle, or address*
in their little assemblies, had woo their highest estimation,
was naturally appointed their leader and governor. Even in
its infancy subordination assumed various forms. Tune, acci-
dent, the progressive increase of mankind, and the diversified
extent of the mental feelings and capacities of different na-
tions, have rendered the forms of government more nume-
rous and complicated.

To explain the various merits and demerits of the different
forms of government which now exist, is foreign to the scope
and intention of this Treatise* It may, however, be observed,
that as on the one hand a despotic monarchical form of govern-
ment degrades the native freedom and dignity of man; so,
on the other hand, die republican system, if it do not expose
the people to the worst species of despotism, tends to create
endless anarchy and confusion in the State*

The rights of sovereignty, or supreme power, axe of a le-
gislative and executive nature, and must, under any jpoa of
government, be vested exclusively in a body or bodies, dis-
tinct from the people at laige. In this country, the lqgbk*
tive and executive authorities are wisely placed in different
hands : the power of making laws being allotted to the King*
Lords, and Commons, who constitute the . Parliament; and
the right to administer and execute diem being assigned to
the King, who in his political capacity of supreme executive
magistrate, mutt in general consider the laws, not his own
will, as the criterion of his conduct That government is
arbitrary in which the legislative and executive departments
are inseparable; but when firmly and inalienably secured in
separate hands, the different-branches of government operate
as a check on each other, and form that mixed monarchical
constitution which has been coneidcared by most writers on
political subjects to be bust calculated to secure the happiness
and liberty of the subject.

The executive power could not exa§t if the King bad 119
•share in die legislative authority; which would in such case

make

Ch, L] Principle* of the Constitution', %c.

■lake irapidenerftachirients on, and gradually assume, the reina
of government, The King is, therefore, very properly a con-
stituent part of Parliament; in which eapaeity he possesses
the means <rf preserving inviolate hia rights and prerogatives,
as supreme executive magistrate, by withholding his assent
at pleasure, tM without stating: any reason, to the enactment
•f provisknurtending to their prejudice* It is, however, only
for the purpose of protecting the regal executive authority
that the constitution has assigned to the King a share in legis-
lation: this purpose b sufficiently ensured by placing in the
Crown the negative power of rejecting! suggested lews. The
soya! legislative right is not of the deliberative kind ; the
Crown ha* no power to propound laws; and it would have
a dangeroua tendency and influence* if the King were allowed
to recommend from the throne what law* ought to be passed';
as was done by aotato of our arbitrary Sovereigns, and by the
Roma* Emperors, Whose oraiiortes Were the exact patterns to
which the senatus eonsvlla were to conform. Important,
therefore, us this prerogative of rejection is as a shield
against rebellious encroachments, as a preservative of the
royal executive function, it is, in other points of view, of a
limited and negative nature* Thotigh the King is said to be
die tctput\ primipiunt, et JhsU of Parliament, he is but a part
of it, end, per sey possesses no legislative power. Though hia
Majesty alone cart call Parliament together, end dissolve its
authority, these right* are purely of the executive kind. In
a constitutional point of view, however, the legislative power
is lodged ib the King, subject to the assent of the Houses of
Parliament. L*w»4r6 said to be enacted "hp the Kings Most
Bxctiknt Majesty? by and with the advice and consent of the
Lords Spiritual and Tefepond and (flomiaon* in Parliament
assembled*"

As supreme executive magistrate, the King possesses, sub-
ject to the law1 of the land, exotarive* deliberative, and more
decided, mare extensive, and more discretionary' rights and
powers. These ate wisely phftced in a single hand by the
Bsitisb constitution, for the sake of unanimity, strength, and
dispatch. Wetfe they placed in many hands, they would
be subject to many wills; many wills, if disunited, and
drawing different w&ys, create weakness in a government;
and, to unite those several wills, and reduce them to one,

b 2 is

4 The King's Attributes, #c. [Ch. I.

is a work of more time and delay than the exigencies of State
will afford. The King of England is therefore not only the
chief, but properly the sole, magistrate of the nation ; all
others acting by commission from, and in due subordination
to him. (a)

" By the word * prerogative ' we usually understand,*' ob-
serves Sir William Blackstone (ft), " that special pre-eminence
which the King hath over and above all other persons, and
out of the ordinary course of the common law, in right of
his royal dignity. It signifies, in its etymology, (from pra and
rogo) something that is required or demanded before, or ixt
preference to, all others. And hence it follows, that it must
be in its nature singular and eccentrical ; that it can only be
applied' to those rights and capacities which the King enjoys
alone, in contradistinction to others; and not to those which
he enjoys in common with any of his subjects; for if once
any one prerogative of the Crown could be held in common
with the subject, it would cease to be prerogative any longer.
And therefore Finch (c) lays it down as a maxim, that the pre-
rogative is that law in case of the King, which is law in no
case of the subject."

The splendour, rights, and powers of the Crown were attached
to it for the benefit of the people (d), and not fof the private
gratification of the sovereign; they form part of, and are,
generally speaking, as ancient as the low itself, and the statute
17 Ed. £. st. X.de prercgativa regis is merely declaratory of the
common law. (e)

In every community, it is highly important that the greatest
reverence towards their sovereign should be instilled into the
mind* of the governed,— unattended by respect, authority
speedily diminishes ; and without a due share of authority, it
would be impossible for the King to enforce respect to the laws;
on the observance of which depend the happiness and security
of his subjects. Independently therefore, of the mere trap-
pings and outward magnificence and title (f) of royalty, and
of the various substantia authorities and powers of the Crown,
the constitution has attached to the wearer certain attributes
forming his constitutional character and royal dignity.

(a) 1 Bla.Con.250. (*) 9 In*. 496. 863. 10 Co. 64* •

<*) IbM.439. Box)). 117.

(c) Finch, L. 85. {/) See Com. Dig . tit Roy. B. I BHl

(tf) 3 Atk. 171. 4 T. R. 4 JO. C. 190.

These

Ch. I.] Tfte King's Attributes, %c. 5

*

These attributes are principally sovereignty or pre-eminence,
perfection, "the King can do no wrong;" and perpetuity* "the
King never dies." (a)

By the attribute sovereignty or pre-eminence, and perfection,
we are not to understand that the King is above the laws, in
the unconfined sense of those words, and that every thing he
does is lawful ; but that his Majesty, individually and person-
ally, and in his natural capacity is independent; and is not
amenable to any other earthly power or jurisdiction. (6) The
inviolability of the King is essential to the existence of his
powers as supreme magistrate; and therefore his person is
sacred* The law supposes it impossible that the King him-
self can act unlawfully or improperly. It cannot distrust him
whom it has invested with the supreme power: and visits on
his advisers and ministers the punishment due to the illegal
measures of government. Hence the legal apophthegm that
the King can do no wrong. As the law provides no redress
against the sovereign, it properly attaches the blame of illicit
proceedings to those only who are within the reach of punish-
ment; for it would be absurd to suppose legal culpability which
is dispunishable. The constitutional signification of the maxim
was in former times misrepresented. It was pretended by
some that it meant that every pleasure of the King was lawful,
a doctrine subversive of all .the principles of which the con-
stitution is compounded. It is a fundamental general rule, that
the King cannot sanction any act forbidden by law: it is in that
point of view that his Majesty is under, and not above, the
laws; that he is bound by them equally with bis subjects.
Ipse out em Rex non debet esse sub homine, sed sub Deo et sub lege,
quia Lexfacit Begem* Attribuat igitttr Bex legi, quod Lex attri~
buat ei, videlicet dominationem et potest atem,- non est enim Bex,
ubi dominatur voluntas, et non Lex*9 (c)

The perpetuity of the Crown is expressed by the quaint
maxim that the King never dies; by which is meant that on
the death of the King, the prerogatives and politic capacities of
the supreme magistrate, instantly vest, without a moment's in-
terregnum, in his successor, (d) «

Having thus considered the attributes constituting the po-

(«) T BTa. Com. 241. (e) Bract, lib. 1. ch. S.

W Ibid. <<*) Plowd. 813. 7 Co. R. 10. b.

Pott. 11.

r* litic

6 The Prerogative in general. [Ch. I.

litlc character and dignity of the King, it will "be proper to
take a view of his principal and transcendent prerogatives as
executive magistrate.

With respect to foreign states and affairs, the whole majesty
and power of his dominions are placed in the hands of the
King, who as representative of his subjects possesses discre-
tionary and unlimited powers. In this capacity his Majesty has
the sole right to send ambassadors and other foreign ministers
and officers abroad, to dictate ttieir instructions, and prescribe
rules of conduct and negotiation, (a) His Majesty alone can
legally make treaties, leagues and alliances with foreign states;
grant letters of marque and reprisals, and safe conduct ; de-
clare war or make peace. As depository of the strength of
his subjects, and as manager of their wars, the King is gene-
ralissimo of all land and naval forces: his Majesty alone can
levy troops, equip fleets, and build fortresses.

The King is also supreme head of the church : in which capa-
city he appoints the archbishops and bishops ; convenes, pro-
rogues, restrains, regulates, and dissolves all ecclesiastical
synods or convocations ; and is the dernier resort in all eccle-
siastical causes, an appeal lying ultimately to him in chancery
from the sentence of every ecclesiastical judge, (ft)

With regard to the Houses of Parliament, the right to assem-
-ble, prorogue, and dissolve them, belongs exclusively to the
King as supreme executive magistrate.

As thejbuntain of justice, and administrator of the laws, all
judicial power is supposed to be derived from the Crown ; and
though the King himself possesses none, yet he appoints those
by whom it is exercised, and constitutes courts and offices. The
pardoning offenders and issuing proclamations, are also ranked
among the prerogatives of the Crown.

The King is also thejbuntain, parent, and distributor of ho*
nours, dignities, privileges and franchises.

The superintendence and care of commerce, on the success of
which so materially depend the wealth and prosperity of this
nation, are also, in various cases, allotted to the King by the
constitution.

Though in the exercise of his lawful prerogatives, an un-
bounded discretion is, generally speaking, left to the King ;

(a) 1 Wooddn. 83. (*) Fort, chap. 5. A BU. Com. 279, 280.

and,

Ok I.3 Boundaries and Restraints. 7

and, in using such discretion, his Majesty is irresistible and
absolute; (a) yet there are certain duties pointed out, with a
visible hand, for his observance : and various boundaries and
restraints, on the tyrannical and oppressive use of the royal
powers, are wisely interwoven into the texture of the constitu-
tion*

The duties arising from the relation of sovereign and sub-
ject are reciprocal. Protection, that is, the security and
governance of his dominions according to law, is the duty of
die sovereign; and allegiance and subjection, with reference
to the same criterion, the constitution and laws of the country,
form, in return, the duty of the governed, as will be more fully
noticed hereafter. We have already partially mentioned this
duty of the sovereign, and have observed that the prerogatives
are vested in him for the benefit of his subjects, and that his
Majesty is under, and not above, the laws. This doctrine is
laid down by several writers ; (/>) and is expressly ratified by
the coronation oath, wherein the King swears to govern accord-
. ing to law, to execute judgment in mercy, and to maintain the
established religion; and by the statute 12 and 13 W. 3. c.
2. which declares that " the laws of England are the birth-
right of the people thereof; and all the kings and queens
who shall ascend the throne of this realm, ought to admi-
nister the government of the same, according to the said
laws : and all their officers and ministers ought to serve them
respectively according to the same : and therefore all the laws
and statutes of this realm, for securing the established reli-
gion, and the rights and liberties of the people thereof, and all
other laws and statutes of the same now in force, are ratified
and confirmed accordingly."

There are also various boundaries, which the constitution
has set to the royal prerogative, (c) These consist in the
actual and positive limitation of the powers of the Crown, in
certain specified cases. Thus, though the King is supreme
head of die church, he can neither legally alter his own, or
establish any other, than the national religion ; and must tole-
rate the dispassionate religious sentiments of others. His

(a) 1 Bit. Com. 251,2. c. 9. and 34. 1 Bit. Con. 835,4.

(b) Brae. Kb. 1. c. 8. Ub. 2. e. 1 6. t. 3. (c) See De LdIidc oo the Constitution
—-Year Book, 19 Hen. 6. 63. Fonefcue, of Great Britain, chap. 6.

Majesty

8 Boundaries and Restraints. [Ch. L

Majesty is invested with the exclusive right to assemble Parlia-
ment, but must assemble otae at least once in three years: is
the fountain of justice, but has in person no judicial power,
and cannot alter the law, or influence the determinations of his
judges : may pardon offenders, but cannot prejudice civil rights
and remedies : has the management of martial affairs, but can-
not, without the. consent of Parliament, raise land forces* or
keep them on foot, in time of peace.

The restraints on the undue exertion, and the misuse of
even the undoubted powers of the Crown, are also of the
most vital importance ; and principally consist in the depend-
ence of the Crown on the people, that is, the House of Com-
mons, for supplies ; and in the constitutional responsibility
of the advisers, ministers, and officers of the sovereign* Re-
straints which are fully sufficient, if unpolluted by the eneiv
vating hands of an unconstitutional influence, to deaden and ob-
viate the most strenuous attempts to subvert the constitution.

Unaided by his people, who alone possess the power of
taxing themselves, through the medium of their representa-
tives the Commons House of Parliament, the King has com*
paratively no revenue or resources which he could con-
vert to purposes extensively dangerous : and, as observed by
De Loltne, {a) " In these days when every thing is rated by
pecuniary estimation, when gold is become the great moving
spring of affairs, it may be safely affirmed that he who depends
on the will of other men, with regard to so important an
article, is, whatever his power may be in other respects, in a
state of real dependence." Without money the King can
neither maintain his forces, carry on a war, perform various
treaties with other potentates, or pay the salaries of his officers,
who so materially add to the influence, and consequently to the
power of the Crown.

The constitutional responsibility of the advisers, ministers,
and officers of the Crown, not only operates as an induce-
ment to them to act with caution, but enables the people,
through their representatives the House of Commons, to ex-
pose, by an impeachment, to public view, to the eye of the
world, die corrupt, the ill-advised, or impolitic measures of ad-

(a) On U:« English Constitution, page 72.

ministration ;

Ch. I.] Who entitled to the Prerogatives. 9

ministration ; an exposure which must tend to the destruction
of ambitions projects, and which the King cannot prevent, the
party impeached not being allowed to plead his Majesty's par-
don in bar to the impeachment

Should a sovereign of England again unhappily and per-
sonally persist in measures, tending to a dissolution of the prin-
ciples of the constitution, though the law provide no stated reme-
dy against him, the feelings of mankind point one out, and his-
tory furnishes instances of the result of such a conflict In many
countries tyranny has been confirmed by the struggle : in this,
however melancholy and lengthened the convulsion may some-
times have been, liberty has ever eventually triumphed. And
it is a proud consideration, that in 1688 the Lords and Com-
mons, instead of pretending to a right to form another system, on
Mr. Locke's theory, that the constitution was dissolved by the
attempts to destroy, it, declared with the profoundest wisdom,
that the constitution still subsisted : and, acting on that solid
principle, they adopted a remedy suited only to the necessity
of the case ; adhering to ancient and fundamental doctrines,
so far as circumstances would admit; but at the same time re-
storing to their original perfection and beauty those principles
which tyranny had endeavoured to sully or subvert
• In considering who, in legal contemplation, is entitled to
exercise the prerogatives, it will naturally be our first inquiry
in whom the Crown is constitutionally vested. It is unneces-
sary to remark, that by the King alone can the prerogatives
be exercised.

« The Crown is," says Sir W. Blachtone, (a) « by com-
mon law and constitutional custom, hereditary in a manner
peculiar to itself; and, though the right of inheritance may
from time to time be changed, or limited, by Act of Par-
liament, as was done at the Revolution in 1688, still, un-
der such limitations, the Crown continues hereditary." This
rule is admirably illustrated by Sir W. Blackstone, by an His-
torical Sketch of the Titles of the Kings of England.

The rules of inheritance which govern the descent of pri-
vate estates, are in general equally applicable to the descent
of the Crown, (b) The few differences which exist were in-

(c) 1 Bla. Com. 191.

(b) 5 Baa Ab. 591. tit. Prerog. A. 1 Wooddn. Vr L. 69. 1 Bit. Com. 193.

troduced

10 Who. entitled to the Prerogatives. [Ch. L

troduced on grounds of political necessity* The general doc-
trine, that all the daughters of the father, who died seised,
mne entitled to his estate, on failure of a male heir («), does
not apply to the descent of the Crown ; so that the eldest
daughter of the last King is, under such circumstances, exclu-
sively heiress to the throne. (6) So the rule of possessio fratris
does not hold on the descent of the Crown; nor is half-blood
any impediment in such case. Therefore, if a King has
issue a. son and a daughter, by one venter, and a son by
another venter, and die ; on the death of the eldest son
without issue, the younger brother is entitled to the Crown,
to the exclusion of the daughter, (c) Even the doctrine which
antiently prevailed in the law of descents, that when the eldest
son was already provided for, the next brother should take
the rest of their father's inheritance, was never adopted as a
rule of public succession, (d)

It should however be remarked, that even a King 4*f0ttof
or one in the actual exercise of sovereignty, whilst he remains
on the throne, is by law entitled to the royal prerogatives; (e)
and is so far King that treason may, legally speaking, be
committed against him. (/) The doctrine is grounded on
the maxim* protectio trahit sutytctxmm et tubjectio protee-
liana* ; (g) and though it evidently contradicts a very com-
mon principle* that no one shall avail himnelf of his own
wrong, it appeals to be in a political point of view highly
reasonable* It is indeed a political principle instituted for
the safety and benefit of the people, whose loyally may be
repressed by the overwhelming pawc* of an usurper. And
Sir M. JfaUr (A) speaking of a King &jure and de facta, and
contending that rfUgianaa isdue from the subject to the latter
as: well as ithe fcrmetf, observes: " Ha (the subject) hopeth
for protection from the Crown* and. he payeth his allegiance
to it, in the person of him whom hesaeth in full and peace*
able possession of it; he entereth. not into the question of

(a) Sea Lit. «tct. 241. Set KeYyng, 14. 1 Kab. 315. Bro. Ab.

(*)Co.lit. l$.b. 7Co.l2.b. lBla, tikCharterdep«rdoa,pI.22. 2Wooddn.

Com. 194. 1 Wooddn. 69. 502, 3.

(c) Plowi. 245. 4 Inst. 206. Co. Lit. (/) 1 Hawk, P. C Bk. 1. c. 17. «. II.

15. b. I Wooddn. 69. Hal. Hist P. C. 102. 4 Bla. Com. 77.

(rf) 1 Bla. Com. 200. (g) 7 Rep. 5.

(#) Foster, Cr. Law, 188. 399. 402. (A) Foster, Cr. L. 399.

title,

/

Ch. L] JVho entitled to the Prerogatives. 11

title, lie having neither leisure net* abilities, nor i* he M li-
berty to enter into that question : bat he seeth the fenntnin,
from whence the blessings of government, liberty, peace* and
plenty flow to him, and there he payeth his allegiance,"

The royal rights and powews cannot be Tested in two per*
sons at the same timet consequently the King de jimp is fay
law disabled from exercising them, whilst the usurper is in
the actual possession of the crown* («) It is even tiaid (6)
that the people are legally bound to resist any attempt the King
dfjwr mayvtake to assume the royal authority. Fnrthejuttifi*
«f this latter doctrine, but few will contend: and it appears usv
tenable in point <rf law. Sir W* Blachtont satisfactorily re*
fates the position, and holds that the statute 11 Hm* f# a I.
em which it is attempted to be grounded, does not enforce
or command any opposition to a King de jur&> but merely
excuses the obedience paid to a King de facto, .(c) It most,
however, be observed that if the King de Jure has once had
possession of the throne, his subjects cannot legally obey or
recognize an usurper of such possession, (d)

Immediately on the demise of the King, his successor is
entitled to the prerogatives attached to the Crown : no coro-
nation, no formal recognition of the claim of the successor is
necessary to the perfection of his title; he becomes instantly
on the djasdhitiefi of his ancestor, a King for every purpo*e.(*)
Much inconvenience would pccur if the realm were deprived,
even for a short period, of a sovereign ; without whom no act
of legislation however trifling can be perfected, or executive
affair, however immaterial, be legally performed. Hence it is
a maxim in the English law that the King never dies : his po-
litical existence is never in abeyance? or suspended* (/)

A titular King, or in other words the husband of a Queen
regnant who is in her own right heiress to tile crpwp, has no
legal Alaim to the royal rights; (g) which ate in such ease
vested by the constitution in the Queen. (*) Hence treason,

(a) See Bra Ab. Charter de pardon, 213. 3 lint 7. Hal. P. C 101. Set

S3. 3 Inst. 7. Wood's lost 359. Hal. Post. R. 189. 1 Bla. Com. 195. 369.

Hist. P. C. 104. 1 Wooddn. 73.

(•) 1 Hawkins, P. C. Bk. 1. o. 17. (/) 1 Bla. Com. 249. ante 5.

■. 16. 0 Wooddn. 50*, 3. (g) See 3 Inst. 7, 8. 1 Hawk. P. C

(c) 4 Bla. Cosn. 77. eh. 17. s. 90.

(4) Hal. P. C. 104. , (ft) HaJ. P. C. 101.

(e) Calvin's Cue, 7 Co. R. 12. Ptowd.

* .

in

12 Of the King's Right to Allegiance. [Ch.ILSecI.

in ihe -legal acceptation of the term, cannot be committed
against the husband of jt Queen regnant; though it may be
committed against the Queen herself, (a) It may safely be
advanced that a King who resigns the throne, and whose re-
signation is confirmed in Parliament, cannot afterwards re*
rane those prerogatives which he has previously renounced
by his own voluntary act. (b)

By legislative provision (c) every person who is reconciled
to, or holds communion w^th, the see or church of Rome : of
who professes the popish religion, or marries a papist, cannot
inherit or enjoy the crown of this realm, and Ireland. And
the King has not the power of subjecting his dominions to the
sway of a foreign potentate, (d)

It has been practically decided, that in case of a grievous
illness depriving the Monarch of the power of exercising the
functions of majesty, Parliament may assemble and appoint a
Regent, with a general or limited jurisdiction, (e)

CHAP. II.

Of the King's Bight to Allegiance— from whom due—'
Nature of it— Of tlie Oaths of Allegiance. — Rights
incident to Allegiance.

Sect. I. — Of the Kings Right to Allegiance— from whom due.

The King is entitled, morally as well as legally, to the allegi-
ance of his subjects, in return for the protection and secu-
rity which his Majesty constitutionally affords them. The
maxim or rule " Protectio trahit subjectionem, et subjectio pro-
tecfionenu" (f) Has obtained in every age, and in every coun-
try ; ana extends not only to those who are born within the
King's dominions* but also to foreigners who live within them,

J a) Sfe ibid. 1 HaT. P. C. 106. 4 Bit. (e ) See Adolphnson tbe Political State

n. 76, 7; ' - ' ' of the British 'Empire, vol. 1, title Kin**

(*) And tee * Hal. P. C. 104. —Regency Act* 51 Oca 3. c. 1. $*.,

(r) 1 Wm. and M. iU 9. e.g. t. 9. Geo. 3. c. 6, 7, 8. 56 Geo. 3. c. 4&

(4) *Rol. Ab. 1 63. 1 35. tin*. 13. (/) Ante, paga 10, 7.

Cbm. Dig. Roy. A. 3.

though

Ch. II. Sec. 1.1 0/ the King's Right to Allegiance. IS

t

though their sovereign is at war with this country; (a} for they
equally enjoy his Majesty's protection, (b) It is even- stated
by Sir M. Foster^ to have been laid down at a meeting' oFaH&fe
badges, that if an alien, seeking the protection of the Crown,
and having a family and effects here, shotdd, during a war
with his native country, go thither, and there adhere to the
King's' enemies for purposes of hostility, he maybe dealt wWl
as a traitor, (c) But aliens who in an hostile manner invade
the kingdom, whether their King be at war or peace with ours,
and whether they come by themselves, or in company with
EmglM traitors, cannot be punished as traitors, but shaH be
dealt with by martial law. (d) So with respect to any conquer*
ed country it is clear that the inhabitants, -irhen once received
into the King's protection, become his subjects ; and are to be
universally considered in that light and not as enemies or aliens;
but if the territory be lost by conquest, the after-born inhabi-
tants are to be considered aliens, (e)

The mere birth of a person within this country will not consti-
tute him a subject thereof, unless he was also born under the
King's obedience and protection; and therefore if foreign ene-
mies should invade the realm, and have children born within
it, such children would be aliens. (f) But children born here
of alien friends are natural born subjects of this country, (g)
as are in general children born either in his Majesty's colonies,
or plantations, or on those parts of the ocean which art rt»
puted the English seas, (k) * \ ^

By the common law die children of natural born subjects
of this country were aliens if born out of the King's domi-
nions : (t ) and the only exception allowed was m the case of
children of English ambassadors, (*) But by legislative pro-
vision (/) all children born out of the King's ligeante, whose
fathers (or grandfathers by the fetter's tide) -were natural
born subjects, are now natural born subjects themselves ftr

• •

(a) I Wopdda. V. L. 379. </) 7 Co. JL 13, * b.

(*) See 7 Hep. 6. Dyer, 1 45. Qob. (g) lb. 1 Init 8, a. 1 Bla. Com. 373,374. .
971. 9 Salkd. 630. pi. 9. Statute, 98 (A) Motto?, 370.
Hon.*. a 16. 1 Hal. P. C 59. IBfaw (i) 4 T«m R. 30S, 310,
Com. 370. (*) 7 Rep. IS.

(0 Port. C.L. 185. (Q 7 Aim. 0.5. 40.*. e. 91. 13

, (d) 1 Hawk. P. C. e. 17,i. 6. O. 3. e. 91. Set 1 Bk. Com. 373. 4

if) *>7ep> ***• Vangh . 981. Cowp. Term R. 909.
tM. f Chalmers' ColL e* Op. 384, 5, Ike. .

. ' every

14 Of the King's Right to Alkgiahcc. [Ch.ILSec.I.

every purpose* unless their said fathers at the tiihe of the
birth of such children abroad, were either attainted of high
treason, or liable to the penalties of high treason, or felony, hi
case of their returning into England or Ireland, without the
King's lkfcnee; or in the actual sertice of a prince At enmity
with Great Britain* If, however, an English woman, a nstxr*
*al bom subject of this realm, marry an alien abroad, their
issue are aliens also* aa none of the statutes make any provi-
sion for such a case* (a)

By various Acts of Parliament, persons not natural born *ub-
jects stay* in certain cares, become naturalized, as if they were
born within the King's territories. Thus every foreign seaman,
who in time of war serves two years on board an Englhh ship)
by virtue of the King's proclamation is, ipso facto, naturalized,
under the like restrictions a* kt statute It W. 3. c. 2. (6);
and all foreign Protestants and Jew*, upon their residing
seven years in any of the American colonies? without being
absent above two months at a time; and alt foreign Protesfetlts,
sewing two years ia a military capacity there, or being three
years employed in the whale fishery, without afterwards ab-
senting thetoeeite* from the King's dominions for mote than
one year* and none of them falling within the incapacities de-
clared by stMmte 4 6.S* c* 91. shall be (upon taking the
oaths of allegiance and abjuration* of* in some cases, an affir-
mation to the same effect) naturalized to all intents and pur*
poses, as if they had been born in this kingdom; except* aa to
sitting in Parliament, Or in Privy Council, and holding offices
or grants of land, &c. from the Crown, within, the kingdoms of
Great Britain or Ireland, (c)

Though it had been asserted that the King rifty nullify for
th* future, that allegiance which natural born subjects owe fain*
by ceding a colony ht which tfaey lite to another potentate; (rf)
ytt there can be no doubt that hi* Majesty is not bylaw enabled
to naturalize an alien. To effect that, an Act of Parliament is
necessary, and such act cancels all defects of blood, and has a
retrospective energy, so as to enable a son born before the na>-

(«) 4 Term Rep. 300. an English born subject are personal, ua*

(*) 13 Geo, 9. c. 3. changeable, and indelible, an* that the

(0 Stat 13 Geo. ** c 7. Kiog cannot tskn stray th» birthright

(rf) See lWooddo. 382. But thai Uby wittout the aid of parliament* Seeae-

no meant clear : it has been strongly feral able enkutt* ia Chelster* See
urged that the character and rights of ante IS.

7 turalization

Ch.IL 8eO.IL] Rights incident (Hereto.

is

tmalifttian to inherit, &c; an effect apd power which do not
attach to simple denization, («) His Majesty is, however, on-
trusted with the important power of making mi aliefc a denizen;
which is in a kind of middle state between an alien and natural
born subject, and partakes of both of them. (6) Denization
enables die alien to purchase, and to transmit lands by da*
scent, kc. but does not qualify him to take any degree of no*
bility, or to sit in Parliament, be of the Privy Council* or
lipid any office of trusty cilril or military, or take any grapt of
lands from the Crown, (c) This prerogative cannot be dfeia*
gated by the Crown to any one {d\ and should be granted ac-
cording to the statute 32 Hen. 8. c 16. s. 7. (e) with a proviso in
the letters patent, that the denizen shall be obedient to the sta-
tutes in farce before the making of that statute : but such pro-
viso does not constitute a condition ; and therefore the deniza-
tion is not avoided by the denizen being guilty of a breach <tf
the laws. (/) Denization may be granted for life, or Jot
years; or to the alien born, and the heirs of his body, or to
the heirs generally; or for particular purposes and intents,
sod in certain places, and no further, or upon condition* (g)

SECT. n.

Of the Naturk and 'Extent of 'Allegiance, and of taking the Oath

of Allegiance.

The well known maxim 'nemo potest exuere patriam* com-
prehends die whole doctrine of natural allegiance ; (A) and is
taken in its full extent by the English laws- (t) The very ex*
iatenee, and at all evtn&the welfare, of a State would be endan-
gered if its natural bote subjects could withdraw, or transfer, with
impunity, that natural allegiance which the lawof every nation (£}
has rendered perpetual and unalienable. To the inseparable and

(•) 1 Vent*. 419. Co. lit. 189. Baa
Jfe AfiflQft * 1 Bl* C*m. 3U* f Ife. U»,
S50. ace pact, tiL EseMut at to an
alien and denizen inheriting, 3cc.

(») 1 Bla. Com. 374.

(e) 6m. Abb Afiens B. Mbflbjr, Bi.
5. e. fc. a.' 14. 19 *w\ J. e. i.

(d) * Roll. Abr. 93. 7 Co. 35. b.

(OTbit act is still in force. * Inst. *.
note 7. Sec 1 WboAdn. V. X. 310.

(/} 1 Rol. Aft. 193. Lane, 3ft.

(;)*B«kAv,95, *Cro. Ja* 33*
7 Co. 5. t»; 6. i tort. 12S. ».
1 Wooddn. V. L. 386, 7. Co. Lit. 129.
a. 2 Jones, IS.

(ft) Foster, Cr. L. 184.

(0 See 1 Bla. C. 369, Suv 7 Co. 7.
9 P. Wins. 124. Hal. K C. 59, Bl.

(*} See Aylif. Civfl Law, b. 2. t. 1

lasting

1 6 Of the Oatiis of Allegiance ; [Ch. II. Sec. II.

lasting qualities of this allegiance, which constitute its leading
features, we may add, that it is not so much due to the coun-
try, as to the sovereign ; and is due to him in his natural,
more than in his political character, [a) Sir W. Blackstone (b)
terms natural allegiance a debt of gratitude, and we have al-
ready seen that it has been considered to be due, in return for
that protection which individuals within the King's dominions
enjoy from his Majesty, (c)

Local allegiance, which is due from an alien or stranger
born, whilst he continues within the dominions of the King, (d)
is implied by law, on the principles we have just considered;
but is merely of a temporary nature, and ceases immediately
the foreigner withdraws himself from this kingdom, (e)

Though the duties of the people towards their sovereign are
implied by law; yet, as an oath will most probably impress
those duties more strongly on the mind, it has been wisely or-
dained, that it shall be taken in various cases.

By the common law the oath of allegiance to the King may
be tendered either in the court leet, or sheriff's tourn, to all
persons above the age of twelve years, whether natives, aliens,
or denizens ; and whether they hold lands of the King or not :
which oath they are by law obliged to take. {/) The oath of
fealty, which, during the feudal tyranny, every tenant or vas-
sal was obliged to take to his landlord, generally contained a
clause, " salva fde et ligeantid domini regh •*" and it was even
considered that the lord was liable to be punished if such
clause were not inserted, (g)

By the oath of allegiance, the person swearing promises to
be feithful and bear true allegiance to his Majesty King
George, (k) The oath of abjuration, which applies to Ireland,
and all the King's dominions, (i) recognizes the right of his
Majesty to be King; promises to maintain the succession of
the Crown ; denies the right of the descendants of the late Pre-
tender, and adjures allegiance to them; it promises and en-
gages, that the person swearing will bear faith and true allegi-
ance to the King, and will defend his Majesty against all trai-

(«) 1 Ventr, 9. (/) Spelm. tit fdc&au * Iojt 191.

(4) 1 Com. 369. 147. Co, Lit 85. Koch, L.S41. 1 Hal.

(c) Ante, t«. P. C. 64.

{4) 1 Bla. C 370. (g) Ibid,

(e) 7 Rep. 6. 1 Bla. C. 370. 1 Wooddn. (A) 1 Geo. 1. it 8. c. 13. i. 1.

V. L. 379. (i) 6 Geo. 3. c. 53. s. S.

torous

ChJI.Sec.IL] Of the Oaths of Allegiance. 17

torous conspiracies and attempts whatsoever against his per-
son, crown or dignity; and disclose and make known to his
Majesty and his successors, all treasons and traitorous conspi-
racies, (a) This oath must by the statute be taken by " every
person that shall be admitted into any office or shall receive
any pay, by reason of any patent or grant from the King or by
his authority, or by authority derived from him in England,
or in the navy, or in the several Islands of Jersey and Guernsey,
or that shall be admitted into any service, office or employ-
ment, in the household or family of the King or Queen,
or of any of his Majesty's issue, and all ecclesiastical per-
sons, heads or governors, of what denomination soever, and
all other members of colleges and halls, within either of
the universities, that are or shall be of the foundation,
or that do or shall enjoy any exhibition, at the age of eighteen
years; and all persons teaching or reading to pupils in either
of the universities or elsewhere, and schoolmasters and ushers,
and all preachers and teachers of separate congregations, high
and chief constables, and every person who shall act as Ser-
jeant at law, counsellor at law, barrister, advocate, attorney,
solicitor, proctor, clerk or notary, in England, (ft)

The statute 1 Geo. 1. st. 2. c IS. s. 10. (c) enacts, that " Two
or more Justices of Peace, or any other person specially ap-
pointed by the King, by order in the Privy Council, or by
Commission under the Great Seal, may administer and tender
the oaths thereinbefore appointed to be taken, to any person
whom they shall suspect to be dangerous or disaffected to his
Majesty or his Government; and if any person to whom the
said oaths shall be so tendered, shall neglect or refuse to take
the same, such Justices, or other person appointed as afore-
said, tendering the said' oaths, shall certify the refusal thereof
to the next Quarter Sessions of the County, &c. in which such
refusal shall be made, and the said refusal shall be recorded
amongst the rolls of that sessions, and shall be from thence
certified by the Clerk of the Peace of such County, &c. into
the Court of Chancery or King's Bench, Court of Sessions,
or Court of Justiciary in Scotland, there to be recorded
amongst the rolls of the said Courts, in a roll or rolls there to

(a) 6 G*o.3. c. 53. the oath, tee 4$ Geo. 3. c 90. a. 13|

(b) Iteputy lieutenants and commit- and c 91. & 9.

atoned otVctn in the militia are to take (c) And see 6G«o. 3. e. 53. %. 1.

c be

18 Rights incident io AUegumcc* [GML Seft.UL

be provided and kept for that purpose only ; and tbat every
person so neglecting or refusing to take the said oaths, shall
be* from the lime of Ms neglect or refusal, taken, esteemed, awl
adjudged a popish recusant convict, and as such to. forfeit and
be proceeded against." (a)

The persons who are expressly required to take the
oaths^ and <yet refuse to take them, according to the acts
are, ipso facto, adjudged incapable and disabled in law to
hold or enjoy any of the offices or employments mention*
ed in the statute 1 Geo. 1. st 2. c IS. s. 2. ; and if they
execute such offices or employments without duly taking the,
oaths, they are, on conviction thereof " disabled to sue or
use any. notion or suit, or to be guardian of any child, or exe~
cutor or administrator of any person, or capable of airy legacy, .
or deed of gift, or to be in any office within the realm of Great
Britain, or to vote at any election for members to serve in.
Parliament, and shall forfeit the sum of five hundred pounds,,
to be recovered by a common informer, in an action in one of
the Courts at Westminster, and by way of summary complaint
before the Court of Sessions, or prosecution before the Court,
of Justiciary in Scotland."

SECT. III.

Of stick Rights of the King over the Persons of his Subjects, as
more immediately result from the Allegiance and Submission due
from them*

The King has an interest in all his subjects ; and is so far
entitled to their services, that in case of a sudden invasion or
formidable insurrection, his Majesty may legally demand and
enforce their personal assistance, though he can on no occa-
sion compel them to leave the country for warlike or other
purposes, (b) His Majesty may also, on any occasion, em-
ploy, arid compel his subjects to serve in such offices or func-
tions as the public good and the nature of the constitution
require, (c) It is a general rule, that where a person is legally

(a) Persons who refuse to appear be- (b) Foster, 158. 16 Via. 1 69*. As to

fore Justice* when summoned to take Impressing Seamen, lie. post. ch. 4.

the oaths, &c. are liable to be punished, (<*) Moore, 111. 1 Ld. Ray. 59, 33.

as if they refused to take them. and cases cited 5 Bac. Ab. 520. tit.

1 Geo. 1. Prerogative, C. 2. 1 Term. Hep. f»8fc;

called

Ch. II. Sec. III.] Rights incident to Allegiance. 19

called upon to perform a public duty, he is liable to be punished
if he refuse to perform it (a) Hence, for instance, a lawyer is
bound on pain of punishment to accept the degree of Serjeant
at Law, when called thereto by the King's writ; (*) nor can a
person duly appointed sheriff legally refuse to execute tjiat
office, (c) This doctrine is not confined to the case of offices
immediately under the Crown, nor to officers appointed by his
Majesty; for persons named jurymen or parish officers must
serve, (d) Nor can a dignity or honour, as for instance that
of knighthood* be legally refused, (e) There seems also to be
no doubt, that a person summoned by the King to the House
of Lords, or elected and returned to serve in the House of
Cofnmons, is liable to be punished i£ being qualified, he
refuse to become a member of either assembly* (f)

Various statutes require persons to take the oaths of alle-
giance and abjuration, and other oaths, before they act in any
public office or employment to which they may have been
nominated ; and provide, that on their neglecting or refusing
to take the oaths, they shall be unable to enjoy or possess such
offices or employments, (g) As no one can avail himself of
his own wTong, it seems that a person legally called upon and
appointed to execute any public office or employment, cannot
protect himself from the consequences of his refusal to serve
therein, by neglecting to take the oaths required. (A) It ap-
pears, however, to be clear, that a person may legally decline
any public function, where sincere religious scruples (which
our law does not attempt to disturb or punish, unless they
manifestly endanger the peace and welfare of society,) prevent
him from conscientiously taking the oaths required, (i)

(a) Per Ld. Ellenborough, a M. and 9 M. and Selw. SIB, 220, 932. 2 Bac.
Selw. 21 8. Ab. $19. tit. Court of Parliament, C.

(b) 2 Inst. 214. 2 M. and Selw. 213. (g) See ante. 18.

(r) See Bac. Ab. ubi supra. By (h) See 2 M. and Selw. 218. ft Mod.

.1 Rich. 2. c. 11. no man who hastened r. 999. \ Fieem. 3*7. 1 Ld. Ray.

the office of sheriff for one . year is 39, 33, 1 DpUg|. <» Elections, 283,

obliged to serve the same within three note. Bac Ab. Sheriffs, B.
years after, if there be other sufficient (j) See Ld. Mansfield's most able ar-

wtthin the county. gument in Cowp. 382, 394. and Harri-

(rf) See cases cited, 1 Term Rep. son v. Evans, Cowp. 393, note, and 535;

682, 684. and see S. C cited Bac Ab. Sheriff, B.

(e) 3 Cruis. Dig. 194, 195. 9 Burn, Ecc. Law, 185. 6 Bro. P. CM 81.

(/) See 5 Rich. 2. st. 2. c. 4. 6 Hen. Per Ld, EUenbomugh, 2 M. and Selw.

8. c. 16. 4 Inst. 43 and 44. 1 P. Wms. 918 ; but see 1 Ld, Raym. 29.
592. 3 Cruis. Dig. 194, 195; 221.

C2 It

20 Bights incident to Allegiance. [Ch.II.Sec.HL

It is a general rule, that the King, as executive magistrate
and representative of his people, possesses the power of ex-
empting individuals from their common law liability to serve
in certain public offices and employments, although such
offices and employments are not under the immediate con-
troul of the Crown, and the persons who fill them are not
appointed by the King, (a) It has, therefore, been held,
that the Crown may exempt a subject from the offices of She-
riff^} Alderman of London, (c) Juryman, (d) Constable, and
other offices and employments of a similar description* (e)
It is, however, an established rule of law, that the King can-
not grant an exemption from duties which are imposed by
statutes, and which affect the general interest of jthe realm. (J-)
Therefore, where a statute enacted, that " The Lord Lieute-
nants of the several Counties should charge any person with
horse and arms for the maintenance of the militia, &e." a
charter of exemption from such charge was held invalid, (g)
Nor are grants of exemption from the Crown valid where they
might occasion a failure of justice, and a public injury; andj
consequently, the King cannot exempt a whole county or
hundred from serving on juries. (A) And it is a most impor-
tant limitation of the power of the King in this respect, that
his Majesty cannot exempt a person from his liability to be
elected a member of, and to serve in Parliament, (*' ) on ac-
count, it should seem, of the nature of the employment. The
power of the Crown to grant exemptions from the liability of
seamen to be pressed, may be rested on the consideration that

(a) 1 Term Rep. 679, 686, &c.

lb) 1 Ld. Baym. 32, S. Savil. 43.
& Cow It 46. b. 5 Bac. Ab. 5B&
Prerog. C. 2.

(c) I Sid. 287. 5 Baa Ab. 608. tit
Privilege A.

(if) 2Rol. Ab. 198. R.2; 199. 1. 5.
S«v, 43* St*% 107. 943. Haym. HS.
Hardr. 389, Dougl. 4th ed. 188. It it
said m 3 Be*. Ab. 758, 9. that it seems
that loch exemption does not extend to
jurors ? etiu»ed into the King'* Bench,
union there be express words including
that Court; also, by the better opinion,
the Sheriff cannot return such privilege
of exemption, but each particular juror
mast come Id and demand it. But such

charter of exemption does not extend
to the Court of King's Bench, unless
particularly named ; nor to any case
where the King is concerned, unless it
has these words, licet tan gat not. And
the Sheriff most not return such privi-
lege, but the persons who would have
the bene6t of it must claim it. 5 Bstc.
Ab. Privilege A. p. 609. Dougl. 1 88.

(e) See 6 Com. Dig. 49. tit Prero-
gative D. (D. 33.)'

(/) 2 Rol. Ah. 198. K. pi. 1. 202. T.
pi. 2. Bac. Ab. Privilege A.

(g) S Mod. 12.

(A) Bac. Ab. Juries E. 6.

(i) 4 Inst 49. See 2 M. and Selw.
214.

the

Ch.II. Sec. II I.] Rights incident to Allegiance* 21

the right of pressing is vested in the Crown alone. This will
be considered hereafter.

Grants of exemptions are construed strictly, and must be
clearly made out. (a)

The King's right to restrain his subjects from leaving his.
dominions, and to compel them to return from foreign countries*
is also grounded on the interest which his Majesty has jn his
subjects ; but the King has in general no legal power to force
any of his subjects out of his dominions, even to carry on a ne-
cessary war. (£)

By the common law, every one, generally speaking, is at
liberty to go out of the kingdom without the leave of the
King, (c) though some particular classes of persons were it
seems always forbidden to do so, without a licence previously
obtained, (d)

The King's right to keep his subjects within the realm,
which exists at common law, (e) and is expressly recognized in
the great charter of King John, [f) may be exercised either
t>y laying on an embargo, which, however, can it seems be
legally done only in time of enmity, and in case of necessity,
&c. ; (g) or by the /common law writ (h) of ne exeat regno * or, if
JPitzherbert be correct, by proclamation, because the King may
not know where to find his subject so as to direct a writ to him. fj)

The writ of ne exeat regno, or de securitate invenienda, ap-
pears from the words used in it, u quam plurima nobis et corona
nostra prejudicialia ibidem prosequi intendis,*' to be a state
writ, (k) and clearly it was originally used merely as such,
principally in cases of attempts, or suspected attempts, pre-
judicial to the King and nation ; in which case the Lord Chan-
cellor granted it on application from any. of the principal
Secretaries, without shewing cause, or upon such information
as his Lordship thought of weight (/} The writ may still be
used on similar occasions, and may be obtained in, the same
manner; and, when it is not issued out of Chancery in aid of

(a)Cowp.519. 1 Term Kep. 686. Mod. 176. &c. 1 Bla. C. 27Q, 1.

{b) Ante. 18. 4 Bac.. Ab. 595. tit. Merchant aodjtfor-

(c) F. N. B. 85. a. 188. Dyer, 296. a. cbandize. JN.B. See pott, ca. 10.

165. 3 Inst. 179. 1 Bla. C 265. 5 Bac. (A) 3 Mod. 1(27.

Ab. 592. tit Prerogative C.,3. Beatnef, (t) F. N, £. 85, C.

1, Ac; 14. (*) 5 Bac Ab. 530, Seeafr.JSaaiM' '

(opioid. Brition, cb. 123. late work on this writ of a* etetU regno.

(t) |3 Mod. 137. (/) IA. Bacon'*, Ordinance, Ho. 89.

(J) 1 Bla. C. 865. Beanies, 17.

(f ) Skinner, 535. 3 I** 3£2. *

the

22 Rights incident to Allegiance. [Ch. II. Sec. III.

i

the debt or demand of a private individual, and in order to
prevent the party from evading justice, the King is not re*
stricted to any particular cases; so that the causes of its issuing,
and the grounds and motives on which it is granted, are not
traversable ; and of course, therefore, the King may issue it at
pleasure, without any reasons applicable to the party restrain-
ed, (a) And it is laid down, that any one upon surmise to the
Chancery, may cause this writ to be sued out for the King, (b)

-But though the writ of ne exeat regno is certainly in its
nature and origin a state writ, yet it has been gradually intro-
duced into the Court of Chancery, and is now become a com-
mon proti&s therein, in order to prevent individuals from
going abroad to .avoid the payment of their debts, (c) And it
may be legally awarded by the Lord Chancellor, not only in
aid of a proceeding in the Court of Chancery, but also to pre-
vent a defendant in an Ecclesiastical Court from evading the
payment of alimony decreed therein by leaving the kingdom, (d)
It is, however, permitted to be used in these cases merely on
the ground that a failure of justice would otherwise ensue* and
debtors would be able boldly to set their creditors at defiance.
It is therefore established, that the writ is not issuable out of
Chancery at the instance of a creditor, in respect of a demand
for which his debtors might be arrested at law. (e)

In order to obtain the writ, in respect of an equitable debt,
it is necessary that there should be a bill filed in the Court of
Chancery, for it is grounded on such proceeding, and till the
bill is filed there is no cause before the Court ; {/) though it
was formerly held otherwise, (g) The plaintiff must also make a
positive affidavit of his debt, and state the amount of it; (A) nor
will the writ be granted if the debt be of an uncertain nature, (i)
though it is sufficient if it arise out of cross accounts, and
in that case the plaintiff may, it seems, swear that he believes
the balance stated to be due to him. (£) Where the demand

(a) Dyer, 165, b, 179. Lane, 99. 30. Alitor in cases of account, Chance-
Moor, 109. 3 Inrt, 179. Com. 53. rj having a concurrent jurisdiction. 8
Skin. 166. 12 Mod. 562. Vet. 593, 597. Beames, 32, 3. 38.

(5) P. K.'B. 85. F. Com. Dig. Chan- (/) 3 P. Wmt, 312.

eery, (4 B.) Or) Prec. Ch. 171.

(c) 5 Bac, Ab. 522. 3 P. W. 312. (A) 3 Bro. 370. 3 Atk. 501. 2 Vez.

<f Vet. 417. 489. 10 Vet. 164. Beam*, 36, 7.

(rf) 2 Vratr. 345. 1 Ch. R. 715. (0 1 Atk. 421. 3 Bro. Ch. R.370.

2 Atk. 210. Ambl. 76. Beames, 30. 1 Bro.Ch. R.376. 8 Vei.597.

(«) 3 P. W. 312. 2 Atk. 410. Ambl. (*) 2 Vez. 489. 3 Atk. 501. Beames,

76. 3 Bro. Ch, R. 218. 427. Beames, 23. See 6 Vei«597.

is

Ch.II. Sec. II L] Rights incident to Allegiance. 23

is against an administrator, &c. the plaintiff should also swear
to his belief of assets come to the defendant's hands (a). This
writ may issue against a feme covert executrix, whose hus-
band is out of the jurisdiction, (b)

The affidavit must also state, that the plaintiffhas reason to
believe the defendant intends to go out of the kingdom before
the conclusion of the suit, and that in such case the debt might
be lost, (c) It should seem on principle to be just and proper,
that the plaintiff should state his reasons for supposing that the1
defendant intends to leave the country, in order that the Court
may judge of their sufficiency, (d) and it is usual in practice
to do so. '•••:?,

If the defendant has given out that he intends to go abroad,
that will suffice: (e) nor need it appear that the defendant in-
tends to leave his Majesty's dominions; it will be a sufficient
cause to detain him, if he purpose to get out of the jurisdiction
of the Court. (/) .•■■■*

It was formerly considered, that on the defendant's putting
in a full answer to the bill, the writ should be discharged ; but
it is now held that he must give security to abide the order on
hearing, before the Court will discharge the writ. This secu-
rity is taken by recognisance before a Master in the penalty
of what is sworn to be due; and the Sheriff takes bail accord-
ingly, when he arrests the party thereon ; the debt sworn to
being indorsed on the writ as a guide to the Sheriff in taking
bail, (g) Indeed as the object of the writ, when applied to
private concerns, is to compel die defendant to abide the everit
of the suit; and, as that is effected in substance, as well by
his finding security, as by his being personally within the
jurisdiction of the Court, it is but just that he should be
permitted when taken on the writ to give such security, and
thereupon die writ will be discharged, (A)

The writ should be always Under the great or privy seal, or
signet; (i ) and may be directed either to the subject himself;

(a) 2 Vex. 469. 3 Atk. 501. 16 Vef. Temp. Talb, 196. 1 WoodJn. 1$7; 3

471 . Mod. 127. 1 1 V«*. 43. Beames, AS.

(ft) 3 Atk. 409. Ambl. 62. S. C. (g) 5 Baa Atk tit, PrtrogatHre C. 3.

(c) 5 Bac. Ab. 22. tit. Prerogative (A) 9 Atk. 400. Ambl. S2. 177. 3

C.3. Beanies, 26 to 28. Bro. Cb. R. 218. 1 Vet. Jnn> 96.

(rf) And tee Beames, 25. Beanies, 40, 59.

(•) 77 Ves. 410, 417. 8 Ibid. 597. (i) F. N. B. 85, a. Lane, 29. 2 Co.

11 Ibid. 54. 16 Ibid. 470. 17. 11 Co. 92.

(/) See 1 P. Win*. 263.pl 60. Ca*.

or

24 Rights incident to Allegiance. [Ch JL Sec. IIL

or to the Sheriff, or Justices of the Peace, or both, command-
ing* them that they take sureties of the party quod ne exeat §
and if, he refuse to commit him to prison, (a) When used in
aid of a debt the latter course is proper.

As the King may command his subjects to remain in the
country, so he may recal them when abroad by his great or
privy seal; and this prerogative extends over all descriptions
of his Majesty's subjects. (6) Various instances in which this
royal right has been exercised and acted upon, are to be met
with in the antient books, (c) The contempt is incurred from
the time when the notice by the King's messenger of his Ma-
jesty's command is received by the absent subject (d) His
Majesty receives the answer of the subject, and is judge of the
contempt, (e)

It is laid down in a book of good authority, that a licence
granted by the Crown to a subject, enabling him to remain
abroad for a certain specified time, cannot be revoked, (/)
but this has been denied ; (g) and it seems more consistent
with legal principles that such licences should be counter-
mandable, as they are merely granted ex gratia, and circum-
stances might be discovered or transpire, after the licence is
granted, which would render it dangerous to permit the sub-
ject to continue abroad, (k) '

Jf the subject to whom the King's command to remain in
or return to this country is directed, disobey it, he is guilty of
a contempt of the royal prerogative, and on proof thereof on
oath, his property may be seized under a commission issued
out of the Exchequer, until he return, (i) In the .mean time,
the King has a greater interest in the property seized than a
mere perception of the profits, and may assign or grant the
effects quamdiu in manibussuisfore contingerint ; and his Majes-
ty (or his patentee) is it seems entitled to woodfalls, may make
leases and grant copyholds, being dominus pro tempore, (k)

The King's right is not aflected by a fraudulent; *nd pre-

(a) F. N. B. 85, 188. B. D. E. See - (g) Lane, 46.

3 Imt. 179. Beames, 19. (A) See 16 East, 165, where a pro-

(») 3 Inst. 179, 180. Dy. 128, b. tection from impress was held to be re-

(0 See Dy. 128, b. 176, 375. Lane, vocable. And see post. ch. 1 6.

49, 4*. I Leond. 9. Moor, 109. <i) 1 Bla. Com. 266. 1 Hawk. P, C.

(rf) Lane, 46. $g. 3 j^ 18o. 10 Yes. Jr. 63.

(e) Leon. 9. {k) c^. 7> 8# Uq^ g p^ ^

(f) Dy. 177. 3 Com. Dig> Prerog, in marg. 375. Moor, 112; 109.

D. (D. 35.) page 50.

tended

Gh. III.] Prerogative, where exereiseable. 25

tended assignment, of the party's property, before Tie was
guilty of disobedience to the King's command, (a) On' the
return of die offender he is liable to be fined ; (J) but is enti-
tled to a return of his lands, as a matter of right (c)

CHAP. III.

Where the Prerogatives are exereiseable ; and herein qf
the Prerogative as it respects the British Colonies*

Though allegiance be due from everyone within the territories
Subject to the British Crown, it is far from being a necessary
inference, that all the prerogatives which are vested in his
Majesty by the English Laws, are therefore exereiseable over
individuals within those parts of his Majesty's dominions in
which the English Laws do not as such prevail. Doubtless
those fundamental rights and principles on which the King's
authority rests, and which are necessary to maintain it, extend
even to such of his Majesty's dominions as are governed by their
own local and separate laws. The King would be nominally and
Hot substantially a sovereign over such his dominions, if this
Were not the case. But the various prerogatives and rights of
the sovereign which are merely local to England, and do not
fundamentally sustain the existence of the Crown, or form the
pillars on which it is supported, are not it seems primd facie
extensible to the colonies or other British dominions which
possess a local jurisprudence, distinct from that prevalent in
and peculiar to England, To illustrate this distinction the at-
tributes of the King, sovereignty, perfection and perpetuity,
which are inherent in and constitute his Majesty's political ca-
pacity, prevail in every part of the territories subject to the
English Crown, by whatever peculiar or internal laws they may
be governed. The King is die head of the church (rf); is pos-
sessed of a share of legislation ; and is generalissimo through-
out all his dominion*: in every part of them his Majesty is
alone entitled to make war and peace ? but in countries which,

(a) Sec Lane, 4£. (c) Per Tanfield, C. B. Lane, 4S.

(*) 1 Bla. Com. $66. 1 Hawk. c.22. (<J) 1 Cbshnett' Op. 12.

i. 4.

though

se

Prerogatives where exerciseabk. [Ch.IIL

though dependent on tire British Crown, have different and
local laws for their internal governance, fcs for instance the
plantations or colonies, the minor prerogatives and interests of
the Crown must be regulated and governed by the peculiar
and established law of the place. Though if such law be silent
on the subject it would appear that the prerogative as esta-
blished by the English law prevails in every respect : subject
perhaps to exceptions which the difference between the con-
stitution of this country and that of the dependent dominion
may necessarily create. By this principle many difficulties
which frequently arise as to the King's foreign prerogative may
be readily solved, (a)

. This distinction being admitted, it becomes material to con-
aider in what countries dependent on England, the English
laws as such prevail. By ascertaining this we shall perceive
to what countries the royal prerogative as such extend; and
how far they may be exercised therein.
. W*Lb$ was not completely conquered by England until the
reign of Edward the first That sovereign abolished the linq
of their antient Princes; constituted his second son Edwac4
Prince. of Wales, (A) and reannexed the country by a kind of
feudal resumption, to the dominion of the crown of England, (c)
Edward the first treated the Welch territory as a conquest; and
of his own authority and by virtue of his prerogative, nuide
various regulations for its governance, (d) At last, however,
in die feign of Henry 8. it was united to England, and was
put and still remains on the same footing with respect to its
rights* liberties and laws : (i) and all statutes made in England
bind Wales also, though it be not specially named. (/) There-
fore as the English laws extend to Wales, all his Majesty's
prerogatives equally apply to both countries, (g)

By the 18th article of the Union of England and Scotland,

(a) Se&urther, post 33, &c.

(*) See Hume.

(0 1 BJa. Com. 93, 94. Burr. R.
850,851.

(if) Cowp. R. 210. And tee Barring-
ton cm the Ancient Statute*, the Statute
of Wales 12E4. I. and Tomlra's note to
that statute.

(e) 87 Hen. 8. c. 26 ; see further,
34 and 35 Hen. 8. c £6. The gene-
ral role i», that where one country is

united to another in such a manner as
-that one keeps its goYerament and
states, and the other loses them, the lat-
ter entirely assimilates with or is melted
down in the former, and must adopt its
laws and customs. Puff. L. of N. and
N. b. 8. c. 19. s. 6.

(/) 1 Bla. Com. 99. Burrow. K.
853.

(g) See Com. Dig. tit. Wales.

which

Ch. HLTJ Prerogative as to the Colonies. Vt

which was effected in the reign of Queen Anh (a), ft is or-
dained that all the then existing Scotch laws should remain
in force, alterable however by the united Parliament of Great
Britain; so that the municipal or common laws erf England,
are generally speaking of no force or validity in Scotland;
though, since the Union, all statutes passed in England bind
and extend to Scotland, though that country be not particu-
larly mentioned, (6)

The Town of Berwick upon Tweed was once part of Scotland,
but is now part of England, and governed by English law*;
and statutes made by British Parliament extend to it unless it
be expressly excepted, (c)

The inhabitants of Ireland are for the most part, observes
Sir Wm. Blackstone, (d) descended from the English ? who
planted it as a kind of colony, after the conquest of it by King
Henry die 2d, and the laws of England were then received
and sworn to by the Irish nation assembled at the council of
Lismore. (e) The change made in the antient Irish laws was
not effected by any English Parliament, but by the charters
of Henry the 2d and other subsequent Sovereigns, who con*
sidered it as a dependent conquered dominion ; and as such,
possessed a legislative right over it (/) So that it is, generally
speaking, true that the English common law prevails in Ira-
land: (g) and it is clear that all statutes made in England
before the 10 Hen. 7. were extended to Ireland, artd m*.
dered of equal force there, by one of Poyning's laws; (A)
But before the union of the two kingdoms, acts of parliament
made in England since the 10 Hen. 7. in which Ireland was
not expressly comprehended, did not relate to that coimfcry.
When that important event took place in the year 1800, and
the two countries were incorporated together, it was expressly
provided, (t) that all laws in force in Ireland at the time of the
Union should remain as by law established, but subject to be
altered by the united Parliament Since the Union itsbojild
seem that statutes made by the Parliament of the united king-

(a) 5 and 6 Ann. eh. S. (/) See Cowp. Rep. 910. pott. 99*

(6) See 8 Burr. R. 853. (g) Ibid, tee 1 Bla. Com. 101.

(c) See 1 Bla. Com. 99. 2 Burr. (A) See 4 Intt 35U 1 Bis. Com.
R. 853. 109.

(d) 1 Bla. Com. 100. (t) 39 and 40 Geo. 3. t. 67. art. 8. .
(*) Pryik on 4 Inst 849.

dom

*8 Prerogatives where exercisable. [Ch. Ill*

dom extend to Ireland though not specifically mentioned,
unless expressly excluded : in the same manner and for the
same reasons that Scotland is bound by English statutes since
her union with England, (a) The effect of the two unions is
to render the different countries inseparably one and the
tame, with certain exceptions: and as both Scotland and Ire-
land send representatives to the English Parliament, there
seems no reason why a statute made by such united Parlia-
ment, without any mention of the places to which it should
be applicable, should not bind the whole united kingdom.

With, regard to the other adjacent islands, which are sub*
ject to the Crown of Great Britain, some of them [as the Isle
ei Wight, of Portland, of Thanet, &c] are comprized within
some neighbouring county, and are therefore to be looked
upon as annexed to the mother island, and part of the king-
dom of England. But there are others which require a more
particular consideration.

The Isle of Man is a distinct territory from England, and is
not governed by our laws ; neither does an Act of Parliament
extend to it, unless it be particularly named therein, and then
ah Act 6f Parliament 13 binding there. (J) "this isle had ge-
nerally been vested by royal grant in the lands of English
autyjectst who exercised a species of royal authority therein, by
assenting or dissenting to laws, and exercising an appellate
jurisdiction, {<?) though an appeal lay from a decree of the lord
of the Wand to the King of Great Britain in council, {d) This
island is now vested unalienably in die Crown, by purchase,
and subjected to the regulations of the British Excise and
Customs. (*)

• Th« islands oS Jersey, Guernsey, Sarlc, JIdentey, arid their
jpptfidagti* wgre formerly parcel of the Duchy of Normandy,
and were ujrfted to the Crown of England by the first Prince
iif tfco Uomon time. (/) They are governed by their own
tabpateM la*** (g) and are not bound by our statutes, unless
pMtttcfcilafcly named; (A) though an appeal lies from. the judicial

(t > flat fttftft. VU - (*) See 3 Geo. 3. ch* B6. 9. 39.

(A) «lfaat.8S4. 8 And* 116. 1 Bla. (/) See H*b HisL Common Liw,

Con. 105, 6. 184 to 189. 3 Burr. R. 856, 1.

(c) See recital of 5 G<*. 3. c £6. (g) 1 Bla. Com. 106. firen as to

1 Ma. Cow. 100, S. King's debt?, 1 Coalman' Op. 3S,

(rf) 1 P. W. 389. (A) 4 Ins* ft&

decision

Gb. Ill/) Prerogative as to the Colonies. S9

decision in the island to the King in council, (a) as- it does- in
general from all territories, as the colonies, &c subject m
this manner to the Crown, though they cannot regularly
transmit a cause to the King without first giving some judge-
ment in it (b) If the judicial superintending power over his
colonies, &c«* by way of appeal, were not vested in, the King,
the law might be insensibly changed to the destruction of the
superiority of the mother country. The King cannot give a
direction to any Court to rehear any cause depending therein 3
but rehearing9 are granted or denied by Courts of Equity, on
petition of the parties grieved, (c)

Our plantations or colonies in America, (d) and in other parts
of the globe, were of course obtained either by conquest or
treaty, or by our taking possession of, and peopling them,
when we found them uninhabited.

When a country is obtained by conquest or treaty, the
King possesses an exclusive prerogative power over it, and
may entirely change or new*model the whole, or part of its
laws, and political form of government, (e) and may govern it
by regulations framed by himself. For instance, ever since
the conquest of Gibraltar, in which, besides the garrison* there
are inhabitants, property, and trade, the King has made or*
ders and regulations suitable to those who live, &c. or enjoy
property in that place* If) As, however, a country conquered
by British arms becomes a dominion of the King in right of
his Crown, it is necessarily subject to the legislature of Cheat
Britain; and; consequently, his Majesty's legislative power oy#r
it, as conqueror, is subordinate to his* own authority in Parlia-
ment ; so that his Majesty cannot make any new change con*
traiy to fundamental principles, or exempt the inhabitant^
from the power of Parliament (g) Nor can the King legally
disregard or violate the articles on which the country is sur-
rendered or ceded ; but such articles are sacred and inviolable*
according to their true intent and meaning, (A) It ianpeeswy

(a) Vaugh. R. 290, 402. 1 Bfa. 17. The King m*y per se t*x* conquered

Com. 106. 2 Chalmers' Op. 177, 222, country.*/ Chalmers' Opinions, 140, 1.

Ac. (/) Cowper, 211. See 1 Eisti 306.

(ft) Ld. Ray in. 1448. See a very clear and able opinion this

(c) 8 Chalmers' Op. 177, subject, 1 Chalmers' Op. 169.

(rf) See generally Stokes on the Colo- (g) Cowper, $09.

nies, eh. 1. ' (A) Ibid. 308, post, 32.

(<0 Dyer, 224. Vaogh. 281. 7 Rep.

and

30

Prerogative* where extrctieabte. [Ch. III.

and fit thai the conquered country should have some la w* j
and, therefore, until the law* of the country thus acquired are
changed, by the new Sovereign, they still continue in force, (a)
As observed by Lord Mansfield, (b) the absurd exception as to
an infidel country, mentioned in Calvin's case, (o) shews the
universality and antiquity of the maxim. So> where the laws
ofithe vanquished territory are rejected, without the substitu-
tion of other laws, or are silent on any particular subjects, such
territory is to be governed according to the rules of natural equity
and right, (d) The King may preclude himself from the exer-
cise of his prerogative legislative authority in the first instance,
over a conquered or ceded country, by promising to vest it in an
assembly of the inhabitants, and a governor, or by any other,
measure of a similar nature, by which the King does not
claim or reserve to himself this important prerogative, (e)

If an uninhabited country be discovered and peopled by
English subjects, they are supposed to possess themselves of it
for the benefit of their Sovereign, and such of the English
laws then in force, as are applicable and necessary to their
situation, and the condition of an infant colony ; as for in-
stance, laws for the protection of their persons and property,
ace immediately in force. (f) Wherever an Englishman goe$
he carries with him as much of English law and liberty as the
nature of his situation will allow.

Sir Wm. Blackstone observes (g) on this subject, that " with
raqpect to their interior polity, our Colonies are property of
three sorts; 1> Provincial establishments, the constitutions of
which depend on rthe respective commissions (A) issued by the
Crojratothe governors, and the instructions which usually ac-
company those commissions ; under the authority of which,
provincial assemblies are constituted, with the power of

(a) 7 Rep. 17. Show. Pari. Cat. SI.
1 Bla. Com. 107, 8. 2 P. W. 75, 6.

(A) Cowp. 209.

(c) 7 Hep. 17.

(i) 2 Salk. 413.

(#) Cowp. 204.

(/) S P. W. 75. 2 Salk. 41 1. pi. 1.
3 Ld. Raym. 1245. 1 Bla. Com. 107.

(g) 1 Bla. Com. 108. And see Stokes
on the Constitution of the Colonies, 13.
fee " Provincial establishments are the
only species of American governments

8

that now remain to Great Britain."
Stokes, 149. 19, 20. Since the 22 O. 3.
c. 82. which abolished the Board of
Trade, whicji formerly regelated mat-
ters relative to the colonies, the Privy
Council is the forum for settling such
matters. The Secretary of State is the
channel through which the colonial acts
are transmitted.

(A) See the form of a governor's
commission, Stokes, ch.4.

making

Ch, IILQ Prerogative as to the Gotamcs.

SI

making local ordinances, not repugnant to the lavs of.Eng*
land. 2. Proprietary governments, (a) granted out hjr {he,
Crown to individuals, in the nature of feudatory principalities*
with all the inferior regalities and subordinate powers of legis-?
latien, which formerly belonged to the owners of counties pa*
latin* : yetstill with these express conditions, that the. &nds- for.
which the grant was m$de be substantially pursued, and that
nothing be attempted which may derogate from the sovereignty,
of the mother country. 3. Charter governments (6) in the na-
ture of civil corporations, with the power of making bye-daws,
for their own interior regulation, not contrary to the laws of
England; and with such rights and. authorities as are specie
ally given them in their several charters of incorporation* The
form of government in most of them is borrowed, from that
of England. They have a governor named by the King» (or,
in some proprietary colonies, by the proprietor,) who is his
representative or deputy. They have courts of justice of their
own, from whose decisions an appeal lies to the King and (in)
council (c) here in England. Their general assemblies, which
are their House of Commons, together with their councils of
state, being their upper house, with the concurrence of the
King, or his representative the governor, make laws suited to
their own emergencies* But it is particularly declared :by
statute 7 & 8 W. 3. c 22. that all laws, bye-laws, usagtis*
and customs, which shall b* in practice in any of the planta-
tions, repugnant to any law made or to be made in this long*-,
dom relative to the said plantation, shall be utterly void and
of none effect* And, because several of the colonies, had
claimed a sole and exclusive right of imposing taxes npcaa
themselves, the statute 6 6#3. c IS. expressly declares*
thfet all his Majesty's colonies and plantations hi AmericaJbara
been, are, and of right ought to be, subordinate to, and depen-
dent upon the imperial Crown and Parliament of Great-Britain;

(a) Observations on these. Stokes, 19,
20. Governor to be approved by King,
7 and S W. 3. c. 22. s. 16.

(6) Stokes, 80.

(e) Ante. 89, 30. post. And see 1 Bia.
Com. 231. 1 Vez. sen. 444. " From the
decrees of the Courts of Chancery in
the Colonies, an appeal lies to the King
in Council here in England. And from

the judgments of the Courts of Common
I*w in the Colonies a writ of error lies
to the Governor and Council of the Co-
lony i and from their decision an appeal
(in the nature of a writ of error) lies to
the King in Council here." Stokes on
theCoLSti. Proceedings on an Appeal,
Ibid. 222 to 831.

i

who

32

Prerogatives "where eserdseabk, (T(3k - itti

who h*ve full power and authority to make laws and statute*
of sufteient validity to bind the colonics and people of Afrie*
rica* subjects of the* Crown of Great Britain, in all ease*
whatsoever. And this authority ha« been since very fohribly
exemplified and carried info effect, by die statute 7 <J. 3. el
59. for intending the legislation of New- York ; and by seve^
ral subsequent statutes, (a) Hence it is dew that, generally
speakipgt the common law of England does not^ as such, hold7
in the British colonies: (A) snch colonies are distinct from,
though dependent on, England : are subject to the control
of Parliament, though not bound by any Acts of Parliament,
unless particularly referred to therein.

With, respect to countries which the King does not hold in
right of his British crown, as his Majesty's German territories,
they have my oooneetkm t>r communication with England or its
lays* (i)

We have already observed that the King cannot vary ftom
any. treaty wfcieh he has entered into on the conquest of' a '
contry; said may preclude himself from the exercise of his '
prerogative powerof legislation, in the 'first instance over' a
conquered or ceded territory, by vestinjgit m an assembly of
the* inhabitants or a governor; (tfy It is indeed a most sound
and important' principle, that thoagh the Kingf may keep in
his am hands the power ©£*egttfeting*tid governing the in-
hahttantw; 'he cannot infringe or depart from -the provisions of '
a charter by whfch he has, though wlttntArily, granted them
any liberties or privileges. In every question therefore which
ariser between the King and his colonies respecting the prero*
gatfrfe, the first consideration is the charter granted to the in*
hiibitann. K Ant be silent on the subject it cannot be doubted,
but that the King's prerogatives in the colony are precisely
thee* prorogMi was wfckrh he may exerciser in the mother conn*
tryr The premgadve in the colonies, nzdets where it is

(a) By S3 Geo. 3. c 46. his Majesty
wu empowered to conclude a trace or
peacw with the Coterie* or Ptantatibns
in America ; and by his Letters Patent
to suspend or repeal any Acts of » Par*
Ijamant which related to those' colonies.

(b) Of this there can be no doubt.
But Mr. Stokes observes, in Mt work on
the Constitution of the Colonies, (hat
tha Crown baa from time to time esta-

3

blished the common law of England in
all the British American Plantations,
except Quebec or Canada. See 14 Geo,
3. c. 84. *. 1 1 . establishing the Crimi-
nal Law of England in Quebec. Great
part of Qaebec or Canada has been, it
seems, given lip to the United States.
Stokes, 31.

(c) 3 Burr. 856. 1 Bin. Com. 4Kb

(rf) Ante, 29.

abridged

On III.] Prerogative as to the Colonies. SS

-abridged by grants, &c. made to the inhabitants, is that power'
over the subjects considered either separately or collectively,
which by the common law of England, abstracted from Acts
<£ Parliament, and grants of liberties, &c from the Crown to
the subject, the King could rightfully exercise in England (a).
Where the colonial charters afibrd no criterion, or rule of
construction, the common law of England, with respect to the
royal prerogative, is the common law of the plantations; and
statutes in affirmance of such common law made before the
settlement of the colony primd fade bind therein : but clearly
Acts of Parliament made in England do not bind the planta-
tions, unless expressly named, or tbe worcU " and all oth<r the
King's dominions," or similar expressions be used (A).

On this distinction it has been considered that if the peculiar
laws granted by charter to the colonies do not expressly pre*
vent it, the King may erect courts of justice and exchequer
therein (c). Indeed the jurisdiction of the colonial judica-
tories in point of law invariably emanate from the King, under
the modifications of the colonial assemblies (<£). And the Crown
may also extend the privilege of sending representatives to the
colonial assemblies to new towns (e) ; may order a nolle pro-
sequi to be entered en prosecutions in the plantations (/); is
entitled to present to vacant benefices (g), a power which it
exercises through the medium of die governor (A) ; and to have
royal mines, treasure-trove) escheats! (as ultimate lord of tha
soil) royal fish, &c therein (i ). Nor can any of the colonial
assemblies make laws unless empowered by the Crown so to
do (k) ; and if when empowered they exceed the prescribed
limits, their enactments are void (/). There can be no doubt
but that the King may alter the constitution of a colony, where
such constitution has not been granted by charter, and is not
founded on, or fixed by any legal and confirmed act of colo-
nial assembly ; but merely by his Majesty's instructions to the
governor (m).

(•) 1 Chalmers' Coll. of Op. 232, 3. (g) Stokes, ch. 4. the farm of it*

ante.

(6) Ibid. 194, 5. 1 Bis. Com. 107, 8. (A) 1 Chalmers* Op. IS, 93.

(c) 2 Chalmers* Op. 176. 1 lidd. (i) Ibid. ISO, 1. 133, 4. 135, 7. ISO.

182, 3. 154.

<<*) 2 Ibid. 342. (*) Ibid. 261.

(/) 1 Ibid. 272, 3, *c. 276, 294. (/) Ibid. 28.

(/) 2 Ibid. 178. (») Jbid« 267, Jte.

n So

34 Prerogative* "where exercueabk. {Civ HI*

So where peculiar laws and f»rooe& exist) as in Guernsey or
Jersey, the King himself, even in seeking to recover his own
debts therein, must resort to such laws for redress iff). . . An4
.the King cppnot tax a polony of English suhjectvbut tlyx>^
4th« medium of Parliament or. the representative assemblj of
the plantations (&X . . t .

, On obtaining a country or colony, the Crown has soyietjffWB
. thought fit by particular express provisions under, the great
seal to create and fprm the several parts of the constitution
of q. new government; and at other times has only grajMqd
..general powers to the governor to frame such a constitution *s
,t he should think fit, with the advice of a council consisting ,pf
a certain number of, the most competent inhabitants; subject
ffp the approbation or disallowance of the Cr*wn. In niost
f instances there are three departments forming the colonial gcj-
yernrnent, each of which deserves attention^ 1st. Tbejgoyejfnor
whc^ derives his power from, and is substantially a mere* ser-
vant qr deputy of the Crown, appointed by commission wnd/er
the great pea]L . T^e priterion for his rules, of conduct, we the
King's instructions, under the.ftign manual; 2dJj^. Tfr? pplpnjal
councils which derive, their autfiority bq^h £^ujUya^4Je-
gislative ffym, the .KijJgV in^ructions. to the gpyernof (c) :
3dl^, The representative wsen^tlies chqsen fry f certain 4flsse$of
( the. colonial inhabifcu^ , ^Thftqght $ g*w4*W ^T^ca»frly
'.^vested exclusively, in $e Crown, f^jefit tp !}&*. i^ilatipns
" by the local legisl^e.,, , .. ., ljIV, ..,..<<,,, ,., „. ., ,.-•
Tl*e gaofsrm^^f ffofynte* ^e^ j^ gejp^ in vef;t^ . with
royal authority ;ti they n^ay; call, prqrogu^.{a#oiw^ (i) and
dissolve t^e qolpnial assemblies,, and .fsxst&e* other kingly
functions: but still tliey are but the servants or renre^r^ta-
tives of the King. Primd facie however their, acts remain
good: and th^ugtvthe King naay refuse to .confine pndijpfQr
revoke . the { governor'? assent \p jm act of the assembly* it
appears that, till revoked, such assent is, generally ^peoking,
effective (*). And there can be no doubt that though the dis-

(o) 1' Cnahn. 58. ' doubt whether or not a proposed Act of

(d) Ibid. 2*22, 3. Assembly may prejudice the pteroga-

(0 A«fottWf duty, fcc; &6k* , 337. tive, he should dot assent tffl' he have

■ fch. 6. received mttrtfetions ; of sliotifd assent,

(rf) Post 35. Strife*, «4t, *. ' The with a claoge suspending the operation

Kfog catm6t adjoorn an Kngtish Farlia- of the Act, till it be ascertained whether

sneht, 'port. ch. 6. or not the King approve of it. Sttkei,

>) J Chaltn. 90S, T.: If a feovcrnor *53» * ■ / '

• cretion

Ch;in.] Prerogative ta to the Cobnies. SS

tiretioD iii pasting Acts of Parliament in England is an incom-
municable prerogative, it is not so as to acts of assembly, but
may be legally communicated to the governor of a colony (a).
The dune as to pardoning offenders in the colonies ; though
it is usual to except the cases of treason and murder (b). Nor
can there be any doubt that the King may enable the governor
to grant' crown lands, franchises, and possessions in the colo-
nies (c). Hie acts of the governor should be under the great
' seal of the province, unless an usage i contra can be shewn (d).
§JM commission may be determined by the demise of the
Crown, as other offices under the Crown are : but it seems that
his ads done at any time, though after the determination of
Iris office by the demise of the Crown or appointment of a new
governor, and before notice thereof, are good (e). Nor will the
determination of his patent per se annihilate the authority of
<jther officers acting independently, though subordinately (/).
But the powers of governors of colonies demand a more ex-
plicit statement. Every governor of a province, by his com-
•mission (g) of captain-general and governor in chief, -and by
ltis commission of ^ice-admiral, and the instructions which
accompany them, is vested with the following powers:

1. He is captainigenerai of the forces by sea and land within
hi* province, and where a provincial establishment or King's
.government joined a charter colony, it was usiial to make the
governor of the -provincial establishment captain-general of the
forces by sea and land, within such charter colony. TJie gor
verno* has also the appointment of all militia officers (h).

2. As governor in chief, he is one of the constituent parts
of the general assembly of his province, and has the sole power
of convening, adjourning, proroguing, and dissolving the gene-
ral assembly; he may also give or refuse his assent to any bill
which has passed the council and assembly. The governor has
*lso the disposal of such employments as his Majesty does not

dispose of himself (/) ; and with respect to such offices as are

(4) 1 Cbalm. 316. ........

\b) Ibid. 190. (0 1 Chalm. 168. Stoke*, 93. See

(c) And we Stokes 195. the tUt. 22 Geo. 3. c 75, by which offi-

ce*) 1 .Cbahn. 241, 9. ces in the colonies are only to be grant-

(e) 34 Ass. pi. 8. GrotQar. 97. 1 ed for such time as the grantees shall act
Vera. 400, 3 j\ Wins, 19$. 1 CbaJnu personally and fcbsve welj thmin. liy
£ 13, 4- srct* 2«tbe Governor may remove the

(/) 1 CSiaUa. 2$0. officer in case of misbehaviour, &c.;

(*) See Stokes, ch. 4, and p. 184. but the Uttcr W "PWaJ to the King

<4) Ibid. 185 to 19a « Council.

d2 usually

36 Prerogatives where cxenciseable. [Ch. Ill,

usually filled by the immediate appointment of his Majesty, if
vacancies happen by death or removal, the governor appoints
to sUch offices until they are filled up from home; and the per- .
sons appointed by the governor receive all the profits and emo-
luments of such offices* until they are superseded by the King's
appointment of others (a).

3. The governor has the custody of the great seal, and is
chancellor within his province, with the same powers of judi-
cature that the Lord High Chancellor has in England (4).

4. The governor is ordinary within his province ; and by
virtue of the King's commission, he collates to all vacant be-
nefices : he has also the power of granting probate of wills ,
and administration of intestate's effects, by virtue of his in-
structions (c).

$. The governor presides in the Court of Errors, of which
he and the council are judges, to hear and determine all ap* {
peals in the nature of writs of error, from the superior courts
of common law in the province (tf).

6. The governor is usually named first in the standing coin- . .
mission, issued under, the 11 and 12 .Will* 3. c 7. for the move
effectual suppression of piracy (*)•

7. The governor is also vice-admiral within his province ; , 4f
but he does not sit in the Court of Vice-Admiralty, there beir^g .. ■
a judge of that Court, who is usually appointed from England, ?
In time of war, commissions to privateers are issued by the
judge of the Court of VicerAdmiralty, in consequence of a
warrant from the goviernors (f )•

With .- respect to the colonial assemblies (g), it is most im-
portant that any idea that they stand on the same footing as
the English House qf Commons should be excluded from con-
sideration., The ..principles on which the English Parliament
res^s its rights, .powers, and privileges, cannot be extended
to a provincial assembly. Parliament stands on its own laws,
the " lex et consuetude parliament?9 (A), which are founded on
precedents, and immemorial usage. The plantation assem-
blies derive their energies from the Crown; and are regulated

(•) Stokes, 190, J. (e) Ibid. 231 }o 233.

(*) Ibid. 191' to 199. Appeal to King ' {/) Ibid. 233 to 2*1.
in Council, ant*. (g) See in general Stokes, 241. ch. 7„ '

(c) I bid. 199 to 222. (A) 1 Inst. 11. 4 Inst, 50. 2 Ld.

(rf) Ibid. 222 to 231. Raym. 1114.

' by

J

Chi kll.} Prerogative as fo ihe CohnSes. ' ST

by their- respective charters and usages, and by the common
law of-Ehgtand. The constitutions of the English Parlianient
and the colonial assemblies necessarily differ : the latter can-
not in general, even adjourn themselves ? this ' is done by the .
g6Yernor(a),,who as representative of the King is the first"
branch of this subordinate legislature. It is however gene-
raHjrtrue, that a legal and confirmed act of assembly has the
same ^operation and force in the colonies> that an Act of Par-
liament has here (A).

Local circumstances, and the necessity of the case, must
also create several differences between Parliament prid the
colonial assemblies with respect to the prerogatives of the
Kibg, as their " caput, principium, et finis* So thrit there can/
be no doubt that the King may assent to an act of assembly
before it meets ; or dissent though the session be closed (<f). ,
The prerogative of dissenting to colonial acts is so material" to
the existence of the King's sovereignty, that there can scarcely./
be imagined a case in which such power could not be exer-
cised.

Though the statute 7 and S Wm. 3. c. 15. as to the contlr \
nuance of Parliament after the demise of the Crown, does not
extend fo the plantations ; several very cogent reasons haw* ,
been' urged in support of the doctrine, that the demise of the J
Crown does not dissolve^ a colonial assembly (d). And the' '
death or change of the' governor, who i$ merely the represen- •'■' <
tative of the sovereign; doed not, if seems, produce that df- '

fect(0- V""' ■ '; ;',

The dependence" of die colonies on the Crown, and rthe so-
vereignty of the King over them, are not weakened' or affectijcf ^
by the termination of their Charters. The "Khig may accept
the surrender of a charter granted to the! proprietor of a colo- " '
ay, subject to the rights of third per$ofts, previdu&ly acquired
under the charter (/*); and in these Cases the Crown may rey |.
surae the reins of government, and may, by proclamation un-
der the Great Seal, authorize existing magistrates and officers
to continue in the exercise of their respective functions (g)i So,
as the King has a right to govern and protect all his subjects,

(«> Stoke*, 241, *. Ante, 34, 35. (rf) Ibid, 30$, 3t2> 328, &c

(6) 2Chalm. 1. Stokes, 241, fcc, («) Ibki. 244, fitc. 254, 5cc. 307^ '

Ch. t. (/) Ibid. 5«, 37.

(<r) 1 Cbalm. 3Uf,.*« (g)t IbM, 13T, 8. Wy

38 Prerogative* where etierckevbh* |1QL IW

it seems that even during the existence of a charter the King
may take it away, and grant fresh powers to another, in case*
of positive Necessity, and upon an extraordinary exigeacjv hap-
pening through the default or neglect of a proprietor of a do*
lony, or of those appointed by him* or their inability to pro-
tect or de&nd the inhabitants in times of war or imminent
danger ; but in such case previous civil righto neattiA, ahd>
must be respected (*)• In thiscbse afa* and in albeit wliesfe a
charter to a colony is forfeited, an inquisition and scire Jmcias
to repeal should regularly be adopted (6).

If the King lode a territory acquired by conquest, and recon-
quer it, the former rights of the inhabitants, under charter*
granted by the Crown, revive and are restored, jure postlimimi g
a conquest by an enemy merely operating as a suspension, not
as an extinguishment, of the rights of former owners (t).

In the case of Penn fc Lofrd Baltimore (rf)^ k was ingeniously
contended, that a colonial province being a proprietary go-
vernment and feudal seigniory held of the Crown, which ha*
the sovereign dominion, the parties holding under charter*
from the King have no power to vary or settle the boundaries
by their own act ; for such agreement to settle boundaries and
to convey, in consequence* amounts to an alienation, which
these lords proprietors cannot do ; and that, even supposing
they might alien entirely, they cannot alien a parcel, as that \&
dismembering. But Lord Chancellor Hardwicke held others
wise, and considered i&pt the subordinate proprietors mighty
londjtde, and without frau 4* legally agree how they would hold
their rights and Settle boundaries between themselves; and
that they, holding in fee, might men alien the lands to datxi-
ral-born subjects without the royal licence, unless expressly
restrained. His Lordship held, however, that the proprietors
could not dismember their provinces, so #s t* alter the nature
of the thing granted, and thereby bind the Crown of whom they
held ; for the tenure and services would still remain on the
whole* and the Crown might demand the whole services of £&her.
In this great ca^e it was also laid down, that, though the £*»
.elusive and original jurisdiction over questions pelade ft
{boundaries between provinces and the dominjpp, ftp* therein^

9

(«) 1 Cha)m. 31. 99. 1*0, 9, (c) Ibid. 108.

VW Ibid v Mid 108. (rf) 1 Vex. Mtt.44t

is

Cfc.IV. Sec. L] Prcragttke a*.td.4h* Gxnm, $c. 39

* fain tfce .King in eotturii (a)* s*HI Chancery may hoid'cogni-
> Mrieaof wtk^uefltkm*. (the Crown imping the optica df being
arparty, .and itsjoght bsiqg Mtn«4 if brought before it}>«n
on Agreement or article* betwem the proprietors «teeeuted' in
• England*. to convey, &*. in pturwaaceof tfofeofcndary to be
eataUishedt And the Conrtftaoewlingfy decreed a specific per-
fopNBgM die agreement between tbe parties 'hswtig given the
Court a jurisdiction it would nty otherwise have possessed*,

»*:

|i

. , i'

'\

• ' i »

CHAP. IV.

Qf the Prerogative qf the King as it more immediately •
relates to independent states and foreign matter*.

. [Section L— In genera}.

*

One of the chief excellencies of the constitution consists in the
, harmony with which it combines all that strength and dispatch
} in the executive department of the state, which might be ex-
pected only from a despotic government; with every liberty*
and right of interference on the part of the subject which is
not inconsistent with the public sveliare. .-'

That such strength and dispatch are politically necessary
throughout the whole machine of government, and more espe-
cially in that part of it which relates to foreign transactions,
cannot be doubted: and experience has shewn rtnat the
rapidity and secrecy which are generally necessary to tfye due *
execution of public measures, will never be found in large

assemblies of the people. ' ' *

Wavering with doubts, and distracted by the jealousies and
the animosities of party, such assemblies would be discussing the
propriety of the step after the. opportunity and occasion /or its
adoption had transpired, tt is only by assigning the exclusive
power of managing and executing state measures to one indi-
vidual, that they can be effectually and properly transacted.

When the rights in question are concentrated in one de-
partment of the state, and the power of the reajjn is wielded

(a) Ante.

by

4a Of-Letkn^ Mary*,^ £Ck.Vl.8ec?.lIV

by; Q*»e !h$jtd* the«ejwUtion jof public measures will inspire then
p^ppl? with vQORfidence, and strike into the enemies 4f 'the*
q^i^ry ttiAtc3^e, that dread of its activity and power, wfekfo-
i(. j* the forattgt ^adewmnr of good policy to create. --

< For ,thefte- peMow the constitution has made the King the
delegate pr repfeseolative of the people* with regard to fo*eigti~
affair^;, agd has invested his Majesty with the supreme exchw?
sive p#wer pf managing them (a). - —

/.*i

ifc

i «. »

SECT. II.

2ftai /&? Aj>^ souk Ambassadors^ $c* abroad.

Tmit tonstitution has vested in the King the sole power of ..
sending ambassadors, consuls (&), and other ministers abroad,
arid receiving ambassadors from foreign states (c). These need. ..
not be 'appointed by letters patent or by any other particular
instrument, though they universally receive on their appoint-
ments some document evidencing their right to fill the situa-
tion assigned to them ; and a consul is generally, if not always*,
appointed by a commission directed to him from the King, '

: SECT. lit

Of Letters tjf Morgue and Reprisals.

T$qb laws of nature and of nations (<£), vest fr every power
a ^igfet to floake reprisals, and adopt a system of fair retalia-
tion, for the aggressions of another community. Where a
nation manifests * general spirit of hostility towards another,
by a series df unauthorised attacks, and satisfaction is denied,
and explanations are evaded, though it be the King's duty as
protector of the rights and honour of his dominions, to enable
hissttbjects to retaliate on their oppressors, yet his Majesty
being Ore bftly constitutional judge of the policy and expedi*
•■•.•• • ■ *

<a) 1 91m, Cojn. ^5t. (rf) Grotius de jure b. et p. lib. S. ' -

(6) See Chitty on Commerce. < ch. 9. Net 4fftd 5.

(0 1 Bl* Com. 253.

ency

eaqy of jQwnmtneing hostilitta* hisfufapets canhflfc ie£dly<
adapt 4he far <o/***s without the iwyatimtli&rity («);•' A*<dfe4
s*r*ed by Sir Win. Bb>ek*tme#>J, A* iiw)€s^ibol^toto bf>
calling in the sovereign power to detennaie wtoert reprisals^
m*y b# made ; else every fnisatet sufferer wooM be »• jud£e in
his own cause- The law has therefore -wisely waged the rigtit?
ta gragt letters of marque and reprisals, either daring- War o^
peace, among the jura regalia* and has nested h*sotefy/ia:the:
King (c) : so that by the law of the admiralty, the property in
a ship taken from the aggressors, without letters of marque and
reprisals, vests in the King as a droit to the Crown, not in
the suffering or other subject who captured it (d). And it has
been decided that a subject of the King cannot take goods
belonging to the subjects of a prince in amity with the King'
by virtue of letters of marque, granted \>y any other, sove-i
xeign or state(t). ,. ; IT >r.

Jt must be remembered that the power which his Majesty, >.
grants to his subjects by the letters of marque and reprisals^
should be restrained in its operation to the subjects of thc^;
offending state ; and it has therefore been determined that * -
clause in a charter which empowers the seizing the goods of <
every person is illegal and void (/*)• The effect of the grant i$v
to authorise the seizure of the bodies and goods of the subjects
of the offending states which may be detained till satisfaction
be made, but no longer^gj; " ":

The statute 4 Hen. 5. c. 7* declares that " if any subjects of
the realm are oppressed in the time of (nice by any foreigners^
the King will grant marque in due form to all that feel them-
selves grieved,9* which form is thus directed to be observed :
the sufferer mustfirst apply to the Lord Privy Seal, and he shall
make out letters of request under the privy seal; and if after

(«) Hal. P. C. 162. 1 Vero.59, Re-
cital 4 Hen. 5. c. 7.

(») 1 Comm. 259.

(c) Ibid. Mottoy, 30, b. 1. c. 2.
a.10. SRohAb. 175. Chitty'sLawof
Wat 73.

' (d) Via. Abr. Prerog. N. A. pi. 2*.
Cartb* 399. * Wooddn. V. I* 433;
10 Vez. 155.

(e) 9 Vara. 592.

(/) See Shower, .137. 1* the case
«f the Sacra fkm&i* it wai decided that

•aftvawl broicfa* tinder letter* of marine
a^aiiist one*ta&v as Jet ifieiance, against
France, is at liberty, on obtaining no-
tice of hostilities commenced against
another, as Spain, to capture a Spanish
vessfel, wth as fall jMkantas/e to tartf
at if the prise had been French. 5>
Bfrb.lL 360.

(g) Grottus, b. 3. c. 9. 1 Bla. Com.
958. Vattel. b. t. €.1*. • 9 Wooddn.
435U>44CL< : .

such

c>

42 (tf LaMortQf Marpz, $c. fiCklV.SQa.llV

BWtk veqnnat of aitb&rtion mad* the party *«puMd do not
withia.coriiieaAent tara quake due aU&actmt w ratfitetfeii to
t>^ par^ ^POTBdt d^ X^d Chaa ifteflor shall make bin* out
. lattaasnef maEqnemider the* groat seal*; ami by virtne-of these
, Wwftj? f^rti A f mi astae the property of the aggressor nation,
without hazard of being condemni ill aa n? robber or pirates

This statute, it-will he observed, relates only to injuries dur-
ing peace, and to die grant' of tatters of marque apd reprisals
to the subject who is anhwlry injured by the foreigners. It is
said, that the mode of obtaining letters of marque pointed out
in the statute has been l«og.<Ksnsed (oj- • By various statutes,
enacted daring every wuc, the Lord High Admiral, or the
' Commissioners of the Admiralty,: are empowered to grant
cottitaissions, or, as they are also called, letters, of flharque and
* r^p^ruak, to the owners of drips, enabling iheto to attack and'
take the property of his Majesty's enemies; which statute*
oontaiil also various provision* as to the prists captured (&)•
These statutes do not,, it shook! seem, affect the royal preroga-
tive in question in the slightest degree*
" ', liettefs of jnarqae and reprisals granted by. the Crpwn are*
; liberally construed, but may be vacated in three Ways— 1st,
by express revocation^), bt# this » only allowable in the
case df letters granted during War; l jvjie*i granted ifrfiihe off
!" j^ettce add unsatisfied, it is tt^erwfie (d) ; fliotigh, Stfly, even-
in such case,, the cessation of hostilities wilt defeat &e fights'
' granted (e J.— ardly, These letters fciay he, vacated by &e mis-
cpnjlucVof the grantees, as by cruelty, fcc. (/}♦
( In eases of recapture* no better of marque from die King is*
required to^pve to the reeapior the benefit of the same' salvage1
to wticti be wonfcd hayc been entitle^ if he had' been provided*
letters of marque (g\ . , •.'.»■
The King, however, has the right of releasing any prize
previously to its condemnation. This, said Lord EUenhorough,
: fti the Case of Sterling fc. Vaughan (h)} is an implied exception'
[j ifa the grant of pri2£ by tJxe Crown.

WlBk.G*a.a». tiufajnrtft!/ («t) Ibid.

**•*. , . >fg.Jhi& 3 Woodd*. V. L 440. 1

..4 ^)Sw29G^q.S.c.34,. I$06fc3». Ven.M,

c 67. 4ft Qc©. 0.; a. i6(k *£6«*.3/ (/J'SRob.Rep.a.

C 73. JKoUojt, cfo 368. - (g) 2 Hud^ 224.

(c) Mtfloy, lib* 1. c.,3. f.s» ChiUy, ... (ty ^1 tat, -619,

L. of Nat. 74, 5. ' -....,

By

* * <

i.'

r;.f : •

B£ the eldest tew «V nations, debt* Ate to *tten entries
aright be *Mfl«a»te& by Ad scaler «** it warn* that iA this
ooontiry th« Ki»£ is entitled lb tfctises ih action befcragjng' to.
aii enemj, but that there fins* to an itiqaisitjm to entitle the
King^and tf a pefcee be Micta before dwutqmaiuott, ttteck^

of fetfettare is discharged for),

i ■ • •

SfiCT. IV.

Of Making War m& Peace*

Ad representative of his people, and executive magistrates
the King possesses, on the principles just mentioned, the ex-
clusive right to make war or peace, either witfcl* or out of^am
dominions (J) ; and the constitution leaves it to the King**
discretion to grant or refuse a capitulation or truce, to an*
enemy (c). This right may be exercised either partially or
absolutely, so that his Miyesty may institute g war against part
of t^e. subject? pf a foreign power, excepting the otter part, as
was done by William the Third, in a war with France, in which
h<s excepted the French Protestants (rf)» And it is not unusual:
on declaring war, to qualify it in the proclamation* by petmifo
ting the subjects of the eqemy resident in this country to con-
tinue here so long as they behay^jpeaceably; and there c^ii be
no doubt (as observed by Mr. liargrave) (*j, that such persons
are to be deemed alien friends, in effect*

The general rule is, " tin helium non est pax est " and there-
fore, though no league or articles of peace subsist between this
and a foreign state, such state is not to be. considered or treated
as inimical until the King has denounced w«r against it (J%
The King alone has a. legal discretion pa this subject under
any circumstances which m#y qccur ; And though a kingdom
which professes to be neptrtd* should cctfrimit the most flagrant
acts of aggression and injuqtic* towards this country, , and
trample on every duty enjoined by the law of nations, still the
King alone can legacy deckr* war agftinstj£(^ 'MwV'tfcy*

(«) ft**, 94*. See yw L*. A*. ,(«) Co«p.*09. •'*•"«

▼foley, 3 Boi. and P. 191. Cbitty, L. (d) See per Trcby, J. TjS. lta^m. 283.

of Nations, 85. (e) CaLit. 1*9, b, note 3.

(*) Hal. 159. T' Co. 2,1. 1 Bfa. (/) Hal. feist, f. t.*160.

Goto. 157. Sec per Sir Wki. Scott 1 %{g) 1 M, and Selw. i5£
Rob, Rep. 196.

Brooke,

44 Rights incident to the WarPrerog. [Ch.1V. Sec.V.

>

BtopWfa bis Abridgment (a), u if all the people of England
waul&make w&r with the King of Demjiark, and our King will:
not consent to it>: this fo not war ; but when the peace is broken
bpambj^Sadors the league is broken."

3fhe reason* which is gven by Grotius (£) why, according to
the law of nations, a formal denunciation of war ought always
to precede the actual commencement of hostilities, is, not. so
modi that the enemy may be put upon his guard (which is
matter mther of magnanimity than right), but that it may be
clear that the war is undertaken not by private persons, but the
will of the whole community, which, as we have already seen,
is, in tegal contemplation, transferred to and vested in the,
Kiftg*' BUckgfone (c) argues, from this reason assigned by
Grotius, that in order to make a war completely effectual, it. is
MBtdtyltfy, by the law of this country, that it be publicly de-
clared, and duly proclaimed by the King's authority, and then
all parte of both the contending nations, from the highest to
the lowest, are bound by it Notwithstanding this, it seems
that* tk* public declaration, or formal proclamation of war is,
by tarj absolutely necessary to render it the duty of the King's
subjects to consider and treat as an enemy, any foreign power
agahrit whom war has in point of feet been resolved upon and
cojftflteneed by1 his Majesty (d)<

* •»
j.

i «
• t •

• » • . «

SECT. V.

»' :

* • " ' 'Of Other Sights incident to the "War Prerogative.

As the constitution of the comftry has vested in the King
the rigktito jmake wfir or peteoe, it has necessarily and inci-
dentally assigned to Mm on die same principles the manage-
ment of the ww£ together with various prerogatives which may
enable his Majesty ta4urfyrif oh with effect Thus the King
is at.the feadt of hi* army *nd navy, Is aftnit entitled to order
their movements, to regulate their internal arrangements, and
to diminish* or, duriqg war, increase their numbers, as fluty

(a) Tit* ttaflttfct, p|. *o. ((f) Owen, 45. Oo. El. 142. Frecm.

(*) De jure fa. et p. 1 3. c. 3. s. 2. 41. Rut. Eqlr. 605. \ttib. Rk».253«
(c) 1 V<A.ftJ$. • -' - -'• - ChittylL.offctt.29.

seem

Ch.IV.Sec.V.3 The Militia^The Arw,, v. \#i

seem to his Majesty most consistent with pdtitXctf} prOp*i$tjf (a): :
On similar grounds the King is solely entitled ta «feot». for**
tity, and govern forts and other places of strength* within hi*
dominions (8) ; both which prerogatives clearly appertain*
to the Crown by the fundamental rules ' of the British consti-
tution, and are expressly recognized as such in; the recitals ofii
iw6'statutes passed in the reign of Charles 2 (c), « Fotasmuqh .
as within all his Majesty's realms and dominions the sole suk .
preme government, command, and disposition of the militia, :
and of all forces by sea and land, and of all forts and places of >
strength is, and by the laws of England ever was, the undonbfi* r
ed right of his Majesty and his Royal predecessors* Kings and w
Queens of England, and that both or either of the Houses of 4
.Parliament cannot nor ought to pretend to die same/* * *l\

With respect to the militia, the extent to which they may.bev:
employed, and various regulations respecting them, are specially } ^
pointed out by a series of legislative provisions (tf), which doV
Jiot deny, but admit, the power of the Crown to command • •
them, subject to such provisions* Under these enactment* {r^ •
the King is enabled in all cases of actual invasion, or ppefr <\
imminent danger. thereof, and. in all cases of rebellion or 'UK*.".
surrection, the occasion being first communicated to Parties r
ment, if sitting, or if not sittings declared in Council; wAl>
notified by Proclamation, to order the 'militia to be embodied ;
And his Majesty may use them, or such proportion of them,
and in such manner as fiis Majesty shall in his wisdom deeih
necessary, and when drawn out into actual service, they are
liable to all the rigours of tiiart&l law. But it is expressly
enacted by all the statutesion this subject that the milithrfchall,
on no account, be sent out of Great Britain.

With respect to the regular fwced $1$ kingdom* who rite A
totally unconnected with, and. substantially different 'in thdr { >
nature and object from the militia, -thcr King J9 not>by la^- i>
restrained to any particular limit* a* •t»:tibe/wrvioei' te^ n
which they , may be , employed rflgnfa^t; Us enenjieal TWy ^
may of. course be sent to any place, or employed to any erf*

* •<.:

(a) I D)a. Coai. 3<fc. ..* ' •" A^/f^pfeee^f il^tailtatbiDne; ""

(A) 2 lost. 30. 1 Ibid. 5. and refer to the subsequent statute!.

<c) 13 Car. 2. st. 1. c. 6. 14 Car. 2.. ( See 1 Bla. Com, .410, 3«ro, £,**< \

«. 3. . . Militia, , - r *. ; )

(d) See 43 Geo, 5, c, j?Q, which . re-. («) See 43 Geo. 9. c, 96. * i \U\* : .

tent,

4» 2S*«k*A Ett.ir.See.Vt

tent, which his Majesty may tbiak fit Bat the constitution*
baa, iritb the wisest jealousy, ordeitftd Ant a -standing force 4*
jm* legal' in tune of peaoe, unless by consent of ParHainewt (£>!
{taring peaces 4i»< King he* therefore He legal authority Of
Hmrugalw* to fcssp tot amy on feet. However, as retnarked
fey Sir Wm. Blttckrt<m6, if has for many years past befefn annu-
ally judged necessary by -our Jegifclatnre, for die safety of tHi
ttngdom, <lfce4e&hce of the-pottessifjas of the Crown of tireot
Britain* 4uad ike preservation flf die balance df power tt
JEimqpe^ lo maintain even ifl time <rf peace a standing body of
trc*ps*i under the command <rf the Grown; who are however
4p» jhotQ disbanded at the expiration of every year, wiles*
< continued by Parliament* And it -Was enacted by statute 10
Wmi 8* c*K that not more than twelve thousand regular fortes
should be kept on foot 4n Irejand, though paid at the charge
of , rim* kingdom; which permission is extended by statute %
Gea. %c 15* to 1S,2S5 men in time of peaee.
> The authority mid power which -the annual A£t grants to ttie
King over the forces -is extensive. It empower* his Majesty to
constitute cants martial* Who are tor try military offferices *&>
. cordrngftoartklasfc-o^^ r

*■> ,I^elOng?spc>w«rovertte2*rrt in time nf war, is a*gttrie-
ral as that which his Miy ferty Jpdesafcses dtrrtngthat period over
to armies,; tfxoepttothis reajtert that tkeartideiof thenavy
i &*fvm*e<\ by the itgisfetui** «nd spfcdfy trith particularity
\ jiimtf <metf p*»stbte <tftac4 and to punishment; thus ;in
dfeetwtf in substance denting hte Majfetty of a legislative
.* potter ovef Ms Hirvy (0): \A& a powerfiri navy cannot, even
during pesge, be regarded *ith the staftpition and distrust
. which are laudably attached to the existence of a standing
. jptayy the KingV prerogative over his navy does not by law
> terminate, nor it it lessened, merely by the cessation" 0/ hos-
tilities.

There is also a substantial legal distinction between the
mode of raising land and *ea forces. Though, as just ob-
served, th£ King has a right to require the personal .service of
every man able to bear arms, in case of a sudden invasion or
formidable insurrection ; and the allegiance due from the sub-

(a) Bill of Rights, 1 W«b.aadM*ry, (4) Sm 55 Geo. 3. c TOS. «« 14, 35,

«t S. c. 9. Recital in st SB.Qeo. 3. fcc. 1 BU, Gbn. 415-
c 108. and the anoutl mutiny act* (<) *e 4 Bl* Com- 48 K

6 ject

aJCP>jl*,Y»] Prtoingk #»

^ict ppcwif»w(^); y#t esfeeffc o» sucb ^ergwcfe^ and «<
<^yli«j«^^r^MM Ws fcJjyesty has ^o lftgtl porter to JoncejRiy <m*
ity ^Ufftrin ife *nefet (fr)#, , Wkh><i*sp«t h^van:^ pern**
w^p cwmb with^ibetteci^t^ attfaanginat)

:t^,K^4«iiar^vwiB>tkBQ<>f pea** qompal jtfaetarS6 totttdp*
Afre -navy, bjr fprdbly unprftsaing tbenv ?
.... .^Ht.pretqgpitfwe of the Crown* .wiich has i*^,mach alft-
4fK%d, and is xretainly a Mat oa En^bhfraedoBivis jbonitefl
on imiaeny>rial usages recognised* admitted* and aajtcfaaraed
.by various Acta of Pariiaaiertt (0). It is aoly ckeraiatmUq awr
individuals wto have in the first inrtajfcce yiofadarily «btMaa<ft
nyrfifaring life, . Mxd does not extend to ]mdmMA(<fyt fialiHhnan>
eaw^incertaitt cases (*); harpooners, Iineraunflgef8^attddiaM>-
;rt«arers employed in the Greenhind fisheries (/)* txfafrkA tin
,the British sqgpreptonftesinthe Westjndiw, *r sejnringdsipri--
vateers, or trading ships employed in such eokaries, efctfef*
in «* of intagion op other fWiggprif JM*e*sh(jr fe)j; ffcftona
under eighteen years of age or of jthe age of fi%tim yws*jr
upwards ; foreigners, whether mariners, atamn or Jaodimen
for the first two years. of their going to ata; or to appnmttces
:not used to the< sea i?r thfe thjee first yoa»a from the date of
their binding theoifdwa^sBiTa attsM(^)» 1 --■' * .* *£ ;.»:;
r The sjjght; foinigress in partj^a^igflf i haaireqntiptiy fctfen
.discussed indfce X2w**s «tf4^ . ft \m btt* h«Mt»Vithafc a
-fceelman or b^wu eigpkjjed, in<5vr?igflfog ww(*)*nand
carpenj^s *anp^ shq*/Oit* ooa*4igsQr>i*ber

trade (4) ; jure respaSiFety Habl* to 'he pttpregMd* , ftot 4mm k
appear that thjt captain or maste* <rf a jading . vfssgMsi att-
empted (I). And seafaring pnqt} far* not tf*mtpted> ftactnise
they serve the office of h«dbott>a^^;.oramfl^ehrid«r»^a);
or because they am fteeme% tot^yin^*), w^wj^towaen (p),
of the City of London.'

r

(a) Porter, 158. U Hen. 7. ch. 1 . , . (A) |3 <Wo.S, <U 17, 4, 1 «tt flk-
1 Ed. 5. c. 5. T6 Mad T7 Car. 1. c. 28. ' ft) l" East, 466, 3 tod 3 Ph. and
(3) See fetter, «Vf ff5. * •' Brf.CloW.7'.

(c) Md. 154, Cbwp. SIS. i Bk. . . (*) 13 E*el,4$9s • ' >' *

Com. 419. 5 Tern Rep. 276. ... (/) Ibid. $*fc note. . U ftfai <3*6.
(<0 See Fetter, 157. Cowp. 519. ' (») 5 Term Rep. *76. -

(e) 5 EL eh. 5. a. 43. 50 Geo. 3. (n) 5 E«st? 477.

c. 10a. t. S. • "' (by 9 TbH. 466, ' ' ' :

(/) ii Geo* *.***.* 19. ipya*p:5t*. -'A

(g) 19 On,* c 30. %, V^mIT.

It

*B tyJBcMcmingmtothe€ouBhy.l^

It seems totave bee»&ex|ttnkm of Lord Kenyan, that mi
exemption from impress cannot be founded on the common
law, fort only W a legial^ve prowkB&(<*)w We have, how*
ctibt, ia tlf e ewe off ferryrpeo, *aa i$atatoe of an exemption
grpuntfed -merely on the common law (?4) : and the express opi-
nion* of J^d Mansfield and Mr. J, Ashlmrst, that as tke r^rt
of,pr^|jing: i» grounded oh the common law, an exemption
from it may.nxist op the same . foundation (<?). Of course it k
ineqq&fjptn* th* party ufeiatuag on the exemption to prove
clearly thckgvopndaon /which he reeta Jib claim to it(tf).
• These is . no doubt that the King may exempt or grant a
proteptiflp to any particular class of seafaring men from im-
presament* becauae, on the Crown alone lies the power of is*,
eimig preasr wrnn^Qta. : In those warranto ins tructhm* ar» gttrtn
tai&e offic^m w* X* VBf&to*& any person protected by the navy,
TirtwJMng ffitee* $cu -Eyw the officers themadi ves gmn t pw>-
tecfrro? ^y^ jot*, therefore if the oficers, arid inferior hoi***

an* .however &-

»/*.•;<» M'in"t:

to^% .^nne^ frivikgp. ;Tb**e

vocable *t jpkaanr*, though granted for ascertain spedfted

As p^n4wtor «fT 9. war*, the >Kfog is mlao enftitldt to *dopt
>* iJfcp-FPWWP* A* WP«P5 o(r engrom b£Wa enemies <rtit of
" if Majeptfo dotainioniw , iThi^hia Ma^eety'maj^pro-
iidgeto W<#to#**; pear dwringrwar.teShrei^etfad hoaWWea,
ryim^o^mmM i^*gJmpy?Jv'«*^^ >*ip-

vl thereby pjer^nt ^ one injm - fetfving dM king-
dom (/). H^^e^i^^a^
to come into the ao*nt*y without tmoltstehn% by granting to
him. letters. of <safe^co«d§>et{g). These Jetters ought to be
nndar the Great Seal, a^ mvoUedinCftancery(A). But pass-
ports under the King** sign manaaLor Kcencea-frean hig mnfana

(«},5 Itaa Bcp. 277* and sea 1
East, 166.'

(b) SeeSev. 14. .5 Term R*p.27T.
per Baffler, J.. -

(c) Cowp. 518. $91, 8.
(rf) Ibid. 519.

(•) 16 East, 165. Cowp. 521. See
at. 50 Geo. 3. c. 108. ante, <*. 3.
as to exemptions in general. Laae»4&.
Dyer, 176, 177. So a pardon not
under Great Seal but merely under

Privy Seal ie rarocabte, Post, tit.
Pardons, 1 Cfritty, Grim* Law, 770.
So of a license to trade. ...
' f/) SMotter, W5: 3 Lev. 552; 4
Mod. 176, 177, 179. 1 Bm. Com. S70, 1.
4 Bac Ah. 595. tittt Merchant ami
Merqba*4ia#, see fertile* put* cb» 10*

(g) See ULRaym* 382. 1 Salt* 46.
Lntw. 34,5.

(A) 15 Hen. 6. c. 3. 18 Ibid. o. 8.
20 Ibid. C 1.

sadors

CKJViSe^V.l e** P*erog*ik*h. v 49

a**iniM« ttmMty1obt4fakd, and ire aHovted
to-be of equsi validity <«)-

-«AUe» Mends may tatffaB? eon* into the dkuArf without'
My Ifcaenca o*f>iotecsion from tbe^mwri (b), though it teems ■'
tWAeC^w o*** at «w«tton tew* and by the la* of Km* -
tiiMM (Md iodep«d«aily of the pbwcM vested Ifi K b^rth^1
AliefriAcf*- J6 jGwS. :<»M* which extendi eved' tb'torigir'
xratthanWfrpnooesdos a right to order them out of thfc txtttntry, !
of jnsrentttbem from coming ' ihto it, whenever fch Majesty '
thinks proper <t> The enactment in Magna Charts d SOI*
rtiatqr lonly to fcrasjsi aattt&airir; *A11 mm*****, Jtmle&s
thcgr vwd apt*riy inhibited before, shaft hart safe mfotirtt ■'
conduct*** depart oat of England, and to come into England; *
and to tarry in and go through England, as well by land asbjf i
waier, to Aay or *«#, without any evil tolls, by die old «nd '
rightful eMgfrmn, except in time of war; and if they beof femtl'
at war with us, and if anch be found in our land at the begfe- *
insigof the war, they shall be attached without harm of body *
or goods, until k be known unto as, or our Chief Justice, how
dm ifemhanta of ourJani areentreated who shkl! be Chen IbWl *'
in the land at war against us, and if ours be safe there, the other* *
aha& be, safe ia\our> bad/* > The fttwtjf of the Grttttttfo Atik
peasavHJth lafcuaaefcciai wg«tsainno, >aa to enable anendmy, ftc. "
totxs4a>w^ts*c^

of uestiig aaiiawdklaiy powtjfrsin tterKtag and" Magistracy, '
in under Ant tfa* country might be^Httected against aliens; it
contains various wholesome pnmskaiB ftr that purpose. -

The law has also- vested in the King several other rights oh
similar ground* :«Thtta, in case of nticesfcity, the-Kirig may eif-
teron thekndadfhia wb^etato^n^ His

Ma^ty has a prerogative right in saltpetre aid gtin{k>^det* (^) ;
stay, to before remarked, require the personal services of his
subjects in thia oduntry In case of imminent danger (/), and
may prohibit the exportation of arms or ammunition, or other .
articles of that nature, useful in war, called contraband of war*

(«) I Blt»0eeft» 960. See 55 Geo. 3. c 54- «.2*

(A) Megm Char* c. 30. 1 Wooddn. (rf) 1 Rot. Rep. 152.

368, VIS* (e) 5 Bee. Ab. 533.

(c) 1 Bis. Com. 259, 260. PuflendoHft (/) Arte.

E put

I

SO Head of the Church. [Ch. V.

out of the kingdom (a). But he cannot hinder the building of
ships of war for an alien ami in this country (&). -*

TV finish this part of the subject, in the words of Lord
Erskine (c)> " The King may relax from the utmost rights of
war, and from its extreme severities. What is termed the war
prerogative of the King is created by the perils and exigencies
of war1 for- the public safety, and by its perils and exigencies is
therefore limited. The King may lay on a general embargo,
and may do various acts growing out of sudden emergencies ;
but in all these cases the emergency is the avowed cause, and
the act done is as temporary as the occasion. The King can-
not change by his prerogative of war, either the law of na-
tions or the law of the land, by general and unlimited regu-
lations."

CHAP. V.

Of the King as the head qf the National Church

4 '

The Supremacy qf.the Groom.— Ecclesiastical Zasws and Powers
qf the Crown respecting Convocations or Synods.-~Ecclesias-
Heal Laws -under the Kings Controul^ Protection, £fc.—*Of the

, King as the dernier resort in Ecclesiastical Comes. — Preroga-
tives as to the disposal of Church Preferments, tfc. — Cus-
tody qf Temporalities.— *Corodies*~-Tithes,' First Fruits and
Tenths, fa

*

The supremacy of the Crown in all matters of an ecclesiastical
nature is, as observed by Lord Hale (d\ a most indubitable
right* which may- be proved by records of unquestionable truth
and authority; and though the Popes made great usurpations
and encroachments on this right, they were ever complained of
and resisted as illegal (i), and were effectually destroyed in
the reign of Hen. 8.

(a) U Car. 2. c. 4. 29 Geo. 2. c. 16. liamenUry Debates, 96 1.

pott, ch. 10. a» to commerce. (rf) Hale, Hist P. C 15. 5 Co. 8.

(*) Fortetcue, R. 388. 40. 1 Bla. Com. «79.

(c) Speech, Mar. *, 1808, on the (*) 9 Burn, Ecc. Law, tit. Courts,

Orden io Council. 10 Cobbett, Pa*. 35,36. Ld.Raym.25.

By

Ch.V/] Heddofthe Chutch. si

By fee statute 86 H. S. c. K it is deck**) that " th* King
shall be taken, accepted, and deputed the only supreme Mead bn
earth of the Church of England, called Anglkma ecctetia* and
' shall hare and enjoy, annexed and united' to the imperial
lCfown of this realm, as well- the title and style thereof, as
all honours, dignities, preeminences, jurisdictions, privilege!,
authorities, immunities, profits "and commodities' to the said
dignity of supreme Head of the same Church; belonging arid
appertaining ; and that the King shall have full power and
authority, from time to time, to visit, repress* redress, reform,
order, correct, restrain and amend ajl such errors, heresies,
abuses, offences, contempts, and enormities whatsoever they
be, which by any matter, spiritual authority or jurisdiction,
ought or may lawfully be reformed, repressed, ordered, re-
dressed, corrected, restrained, or amended, most to the* plea-
sure of Almighty God, the increase of virtue in Christ's
religion, and for the conservation of the peace, unity and
tranquillity of this realms any usage, custom, foreign laws,
foreign authority, prescription or any other thing or things to
the contrary thereof notwithstanding («)." - ' * '

It need not be observed that the King cannot alter the
established religion either in this country Or in any other parts
of his dominion*.

The ecclesiastical law of England is compounded of the civil
law, the canon law, the common law; and the statute law(£). Be-
fore the Conquest, the King, with the assent of the clergy who
were assembled by his writ (c% made constitutions! forming the
ecclesiastical law ; and after the Conquest, and long before the
time of Hen. 8. the right to make canons appertained to the
King, through the medium of the Convocations or ecclesias-
tical Synods or Parliaments, consisting of the archbishops,
the bishops, and the representatives dfthe different 'dioceses {d\
By the Act of submission, 2$ Hen.& c. 19. (after redting that
whereas "the King's humble and obedient 'subjects; the clefgy
of the realm of England, have not only acknowledged according
to the truth, that the Convocation of the same clergy is, always
hath been, and ought to be assembled only by the King's writ;
but also submitting themselves to the King's Majesty, have

(«) See alio' 1 El. c. 1, mnd the Ca- (*) See Pref. to Bora's Eccl. law.

now. Bum's Eccles. Law, tit Supre- (c) 4 lost. 322. Godbtyh. Repert. 99.

macy. (<0 See 2 Bum, Eccl. Law, 26.

e 2 promised

62 Headoftfie Chunk. [Ch. VY

promised in verbo sacerdetii that they will never from hence-
forth presume to attempt, alledge, claim, or put in use, enact,
promulge, or execute any new canons, constitutions, ordinan-
ces provincial, or by whatsoever name they shall be called in
the convocation, unless the King's most royal assent and
licence may to them be had, to make, promulge, and execute
the same; and that his Majesty do give his most royal assent
and authority in that behalf;) it is enacted, according to the
said submission, that they nor any of them shall presume to
attempt, alledge, claim, or put in use any constitutions or
ordinances provincial, by whatsoever name or names they
may be called, in their Convocations in time coming (which
always shall be assembled by authority of the King's writ) \,
unless the same clergy may have the King's most royal
assent and licence to make, promulge, and execute such
canons, constitutions, and ordinances, provincial or synodal,
upon pain of every one of the said clergy doing contrary to
this act, and being thereof convict, to suffer imprisonment and
make fine at the King's will." Upon which statute it is ob-
servable, 1st, That a Convocation cannot assemble without the
King's consent. 2dly* That after their assembly they cannot
confer to constitute any canons without his licence. And Sdly,
That their canons are imperfect, and cannot be executed with-
out the royal assent {a) ; and that no other assent is requisite
(&)• The Convocations (for there are two, one for the arch-
bishoprick of Canterbury, and another for the archbishoprick
of York) are usually assembled at the meeting of every new
Parliament; and when assembled, are under the power and
authority of the King (c), and are liable to be prorogued,
restrained, regulated and dissolved by his Majesty ; a pre-'
iDgstive which was inherent in the Crown long before the time
of Hen. 8. as appears by the statute 8 Hen. 6. c. 1. and the
many authors, both lawyers and historians, vouched by Sir
Edward Coke (d)* Their jurisdiction is confined to matters of
heresy, schisms, and other mere spiritual and ecclesiastical
causes. They cannot interfere with any matters relating to
the laws of the land, and their canons are void, though

m

(a) 12 Co. 72. Convocations in the (6) Stnu 1057.

Plantations, 1 Chalmers' CoU. of Op* (c) Year Book, 25 E. 4, 45, 6.

12. Consequence of holding without (<f) 4 Inst. 329,3. Wood's Inst. 506.

the royal licence. TWiJ. l fila. Com; 279. '

assented '

€h. V.]

Head of the Church.

3$

assented to by the King, if contrary to the common or statute
law, or any custom of the realm (a). As the laity are not re-
presented by any portion of the members of the Convocation
or Synod, canons are not proprio togore9 binding on the laity
(b). The consent of the people is not included in the royal
confirmation of the canons (c).

Ecclesiastics, and the ecclesiastical laws, and the execution,
of them, are peculiarly subject to the royal authority and
superintendence, though- the King does not execute this pre-
rogative in person. Thus, the King has in general the power
of visiting and reforming abuses in the church (d)9 through the
medium of the Lord Chancellor, or of Commissioners appoint-
ed under the Great Seal. Free chapels, hospitals, and dona*
tions of the King's foundation, are visitable only by his Ma~
jesty ; and where a King and a subject join in a foundation, the
King shall visit, for he is founder (e).

The right and power of the Crown to dispense with the
ecclesiastical law, in matters hot repugnant to the law of God,
existed before the time of Henry the Eighth (/), and still
exists, notwithstanding the statute 25 Hen. 8. c. 21. which
vests a right to grant dispensations in the Archbishop of Can-
terbury, for there are no words in die statute expressly deprive
hag the King of his prerogative, who enjoys it concurrently
with the Archbishop of Canterbury /gX This power is confined
to (ecclesiastical regulations, and does Hot apply where any, ex-
press provisions are pointed out by a statute with which the
King cannot dispense {h) ; but in most ecclesiastical affairs th$
power applies. Thus, the King may grant an exemption front
the visitation and jurisdiction of the ordinary (f ), might enable
g bastard to be a priest (£), and may grant dispensations ii>

<«) 1* Co. 1%. 4 lost 332. 25 Hen.
B. c. 1% Btra. 1039*

(A) Stra, 1056.
- (c) Ibid. See further as to Convoca-
tions or Synods. Burn's Ecel. Law, tit
Convocation.

(d) Com. Pig. title Visitor | and see
post 55.

(#) Ibid. 2 lost 68.
. (/) Dav. 70, o. and 73. Godb. 108,
Com. Dig. Prerogative, D. (D. 29), §
V. 38. Vin. Ab. Prerogative, R. f. 17
>rol, 255. 2 Baro'i JBecl. Law, 164.

(g) See Ibid. Hob. 146. Cro, El.
542, 601, Moore, 542. Com. Pijfr
ubi supra D. (D. 19.)

(A) See post cb. 7. And see sect. 6 of
the 25 Hen. 8. c 21. when the Archbi-
shop's dispensations must be confirmed.
And Com. Dig. ubi supra. D. (D. 19,
20.)

(t) Da*. 73, a.

(A) Hob. R. 147. 17 Vra. Ab. 255.
1 Born, Eccl. Law, title Benefice, 3,
page 156. But now he may be a priest
without 1 BU Com, 458, 9.

comnundatnt

54

Head of the Church.

[Ch.V.

commendam^ the nature of which will be considered in a subse-
quent part of this chapter <a). The right of the King to ap-
poiht' and direct superstitious uses to such uses as axe truly
charitable (b)9 and to pardon offences against the ecclesiastical
laws,' flows from the same principle (c).* So the King may,
by proclamation, appoint fasts and days of thanksgiving and
humiliation, and issue proclamations for preventing and pu-
nishing immorality and profaneness, and enjoin the reading of
the dame in churches and chapels (d).

(o) See post. 60.

(6) Bac. Ab. Charitable Uses. D.

(c) As to this see post ch. 7.

(rf) Comp. Incomb. 354. See 10 Ana.
c 7. 8. 11. ' 32 -Geo. 3. c. 63. s. 5. as
to nsnyers tor the Royal Family. On the
occasion, of the death of the late Queen,
the following appeared in the Gazette :

«• LONDON GAZETTE.

?' &tTu*t*r, Novsusea 94, 181 S.

"At the Council-Chamber, Whitehall,
the 18th of Xovember, ISIS, present,
Artbbiakop of Canterbury, Jjord Presi-
dent, Duke of Montrose, Lord Steward,
Earl Bathuret, Earl of Liverpool, Vis-
count'Melville, VIscoant SMmouth,
Bishop m* London, Lord St Hates*, Sir
William Scott, Sir John Nicholl, Mr.
Chancellor of the Exchequer, and the
Lord Chief Baron.

" Wuefea* in the Act wf Uniformity,
which establishes ti^e Liturgy of the
Church of England, provision is made
for such alterations in the Prayers for
the Royal family, as from time to time
shall become necessary, and be directed
by lawful authority : it is thereupon this
day ordered in Council, that in the
Morning and Evening Prayers, in the
litany, and in all other parts of the
Public Service, as well in the occasional
Offices u in the Book of Common Pray-
er, where the Royal Family is appoint-
ed to be pafttatkarly prayed for, the

following form and order shall be ob-
served, .via*

" Their Royal Highnesses George.

Prince of Wales, the Princes* ' of
Wales, and all the Royal Family. %

" And it is further ordered, that no
edition of the Common Prayer be from
henceforth printed, but with this amend-
ment; and that in the mean time, till
copies of such edition may be had, all
Parsons, Vicars, and Curates, within
this Realm, do (for preventing of mis-
takes) with the pen, correct and amend
all such prayers in their Church Books,
according to the aforegoing direction ;
and for the better notice hereof, that
this Order be forthwith printed and pub-
lished, and sent to the several Parishes;
and that the Right Reverend the Bi-
s/hop* do take care that obedience be
paid to the same accordingly.

" Chstwtnd.

" Ip pursuance of an Act pasted in
the tenth year of Her late Majesty
Queen Anne, and of another Act passed
in the thirty «*econd year of His present
Majesty, wherein provision is made for,
praying for the Royal Family in that
part of Great Britain called Scotland ;
it is hereby ordered in Council, that •
henceforth every Minister and Preacher
shall, in his respective Church, Con-
gregation, or Assembly, pray in express
words,
«' JFbr His Most Saered Majesty King
George, their Royal Highnesses
George Prince of Wales, the Prin-
cess of Wales, and all the Royal
Family,

* Of which all persons concerned are
hereby required to take notice,' and go-
vern themselves accordingly.

, ,, " CHETwnm.h

On

Ch.V.] Headof the Church. . 55

On . the same principles, the King* was at common law, -
and is, tbe ultimate judge and dernier retort in ecclesiastical >
causes, though he does not exercise this jurisdiction in per* •
son (ay

By the statute 25 Hen. 8. c. 19. it is declared, tluit «* For .
lack of justice, at or in any the Courts of the Archbisliops of
this realm, or in any the King's dominions, k shall be law-
ful to the parties grieved to appeal to the King's Majesty in the
King's Court of Chancery, and that upon every such appeal, a*
Commission shall be directed under the Great Seal, to such
persons as shall be named by the King* like as in case of
appeal from the Admiral's Court, to hear and definitively de-
termine such appeals, and the causes concerning the same ;
which Commissioners, so by the King to be named or. ap-
pointed, shall have full power and authority to hear and defi* .
nitively determine every such appeal with the causes, and all
circumstances concerning the same ; and that such judgment
and sentence as the said Commissioners shall make and decree
in and upon any such appeal, shall be good and effectual, and!
also definitive ; and no further appeals to be had or made from,
the said Commissioners for the same."

Upon this statute is considered that the appeal does not lie
from a local visitor, nor in any case of a temporal nature (A)..
The Commission is granted on petition, (which may be pre-
ferred by a person who is not an original party in. the cause,
if he be interested) (r), tp the Lord Chancellor, who. appoints
the Commissioners or Delegates (d). These Commissioners, *
who may be laymen as well as ecclesiastics (*), have
power to reverse or affirm the sentence of the inferior Court ;
but have no original jurisdiction, that is, a jurisdiction not by
way of appeal, as to grant administration, &c (/ ). There are,
however, some instances in which the Commissioners appoint- -
ejd by the King seem to possess an original juriqehction, as
where the Archbishop himself is interested* in which case
the Commissioners may begin the suit ; or in similar cases (g), ,

(•) 1 Wooddn. V.. L. 17. 1 Bla. («) Comp. Incntnb. S6* 1 Burn,

Com. 280. . Efccl. Laur, 6t.

(*) Wats. ch. 6. 4 lint. 340. Moore, (/) Latch. 85. 9 Bnlrfr. 2.

*82. (jg) 1 Oughtoti^ OWo Jodictorwn,

(e) 1 Atk. 296. 61. 1 Bam, Eccl. Law, title Appeal,

(«f) fiac. Tract*, 294. 51.

as

3G Held oftte Chxmvi. [Ch. V*

igi wheifc the *bjc«t .is *> jdepiive ccelesiaadbnft^Mmw for
ctfbaoffti sgainsi the:oaponslfl). The proceeding* of AeDflte*
gates: muat bei«BOfdmgU) Ae««deaiaBrical laws? wherefore*
suit before them does not abate by the death of either trf the
parties (6) ; mid if they exceed their authority, or jprooce4 in
ipattew not properly within their conusance, they may be pro*
hfyiudty tte Capri* io£ljw(e). r

. Tbft #**»te %& Heiu8. cJft. s,*. enacts, it will have beta
remarked* that the sentence of the Delegates shall jbe> defini*
tiye^afldtfafct jw> further appeal shell be bad from thsm,<and
consequently no appeal lies even to the Hduseof Loads {d).
It is : iowfeve* settled* that after a sentence of the Delegates,
tfe? ,&ipg jngy by his prerogative, on petition to him in Conn*
9#t jptAtft Gamiois^ian of Review under the Great ileal*
appquifiHg new of adding more to the fanner judges, to revise,
?*YJ£*V 9mi. noheer the cense; and each Commissioners may
reverse the aentenee of the Delegates; for, as observed by Sir
Edward Cobe(*X **** statute does not expressly restrain the
King in this respect, and after a definitive eentenee tfie Bop©
uwd . la gwnt a. Commission, *d reddendum, and such anther
rityaathe Pope had, claiming as supreme head of the Chore*,
of right belongs to the Crown, and is annexed (or rather re*
amwxed> therennto, by the statutes «6 Hen* 6. e. I. and '1 >EI.
a I* Howener, the granting a Commisekln of Review is'maft-
ter rfxliseietkHi end not of rights and' if it*be a hard case, as
where issue might be bestardtad, the Cbaneetlor wfll advise
the Csofivn not to grant i t (/).

rWhere:the King is interested, an appeal to him in Chancery
would bfuebsard j and. therefore die party grieved w may ap-
peal td the: spirited prelates end other abbots and prion of
the uppsr house, assemhled and eonvoeate by the King's writ
in the cpnfeocaticmi being, or neat ensuing within the province
or pcovjaces where tbe matter -of contention '{a or dial} be

(a) 4 Inst. , 340. 2 Cro. 37. Mo. SccJ, Uwy tit Appeal. 3 Bae» Abw

*«fe. Atl'&t/c'l'.a,]*. 1 WoXXian. titcif t^eEccIaiaatical CourU, A. lb:

V. I* ?7» 3 Ma. Com. 67. There is totnetiinct a

(*) Vent*. 133. 3 Lev. 6. Cro. Jac. cjavae in the Commission of Review to

493, admit ether allegations end new matter,

(e) Moor/ 46$, 3. Latch. '85, 86, ' and to take proofs thereupon, as well

229. Gib*. 1037. oo the one part as on the other* 1

(rf) S Vern. 118. Ought. 437.

(e) ♦ Inst 34U Moor. 465, 781. (/) 2 P. Wms. 399. 3 Bia. Coei.

Dyer. CIS. Lit. Rep. 232. l Burn* 67. i"

"""" begun.

Gfi.Vl] HeadqflteCkurekt Si

begun* sotfcrik eweiy aueh sppetfl be taken ty Hie' party grieved
wi&fti fifteen tlays next after the judgment t* sentence *fcto»t-
upon given or to be given: and that whatsoever shall tesb
done and affirmed, detetmmed, -decreed and* adjudged' ty^fthe
said prelates, abbots and priors of the upper-'hoose of the &rid
convocation, appertaining, concerning or beionghlg tti *A4
King, in any of these said causes of appeals shall staiid 'and
be taken for a final decree, sentence, judgment, cBfliriitiori knd
determination, and the sasne matUn: ^^ determmed neret tAer
to come in question and debate, to be examined iii any other
dourt or courts (a V*

e W^rai respect to appeals' Trout places a exempt Ae statute
25iten.8. c. 19. S.-6. enacts, " that such appeals stedl he tnade
ifeunediatefy to the King's Majesty of this realm into the Court
of Ctoancery, in like maimer nnd form a* they used afato *0:d<*
to &e see of Rom&£ -which appeals and provocation ssHnnfie
shall he defiifi^ely determined by authority of th* Sing's
commission, in such manner and form as is mentioned ift'ilni
act; so that no nrchbishop nor bishop **F thht eeaim abaftfai
termtt ormeddle wfth any such appeab, otherwise or In'aYry
pther manner than Ihey might have done jrfbre the ntahing^f
this act''* - ; ; -1, :"" '1*

The disposal *£ the principal cedesiaaticat prdbncttta
belongs also to the King, as the head of the national chinfcta

The statute 25 Hen. 8. e. 20. enafcts, that u on every ahrokfc
anee of e very arehbislsoprick or btshoprick wigiin *h» matti;
or in any other the King's dominions; the King may gimht tb
the prior add convent* erfhe dean and chapter o£?ther crffche-
dral churches or monasteries where die see of such arch*
bishoprick or bishoprick shall happen to be void ; 4' licence
under the great seal, as of old time hath' bee* «cciist»ined,tb
proceed to election of an archbishop or bishop of the 'sail so
being-void, with a letter missive, containing >tbe nssnerf^the
person which they shall elect and choose : by virtue of which
licence the said dean and chapter, or, prior arid convent, to
whom any such licence and letters missive shall be directed*
shall with all speed and celerity in due form elect and choose
the same person named in the said letters missive, to the <%-

(a) 94 Hen. S. c. 12. «. 9; Tb»f »te- peated by the 85th Hen. 8; c. 19. Sec
tute does not appear to have been re- 1 Wooddn. V. L. 77» f Bla. Com. -$7.

nity

58 Head of the Church. [Ch.V;

nity and office of the archbishoprick or bishoprick so being
void, and none other : and if they do defer or delay their elec-
tion above twelve days next after such licence or letters missive
to them delivered, that then for every such default the King,
at his liberty and pleasure shall nominate and present, by his.
letters patent under his great seal, such <a person to the said
office and dignity so being void as he shall think able and
convenient for the same ; and that every such nomination and
presentment to be made by the King, if it be to the office and
dignity of a bishop, shall be made to the archbishop and me-
tropolitan of the province where the see of the same bishop-,
rick is void, if the see of the said archbishoprick be then full,
and not void ; and if it be void, then to be made to such arch-
bishop or metropolitan within this realm, or in any the King's
dominions, as shall please the King's highness, his heirs or.
successors: and if any such nomination or presentment shall,
happen to be made for default of such election to the dignity
or office of any archbishop, then the King by his letters pa-
tent under his great seal shall nominate and present such per-
son as he will dispose to have the said office and dignity of
archbishoprick being void, to one such archbishop and two
such bishops, or else to four such bishops within this realm,.
or in any the King's dominions, as shall be assigned by his
Majesty." This statute was afterwards repealed by 1 Edw. 6..
c. 2. which enacted, that all bishopricks should be donative
as formerly. It states in the preamble, that these elections,
" are in very deed no elections ; but only by a writ of congi
Htlirt have colours, shadows or pretences of election(a)."
This is certainly good sense. For the permission to. elect,
where there is no power to reject, can hardly be reconciled
with the freedom of election. But this statute was afterwards
repealed by 1 Ma. st 2. c. 20. and other statutes, and conse-
quently the 25 H. 8. c. 20. was thereby revived (&). But the
bishopricks of the new foundation were always donative (c),.
as also are all the Irish bishopricks by the 2 Eliz. c 4 (d).

(a) See t Bun, Eccl. Law, 202. did not consecrate him till the broad

(*) 12 Co. 7. teal of the King1! consent wsftproduced.

(t) Harg. Co. Litt. 134. Johns 29. As to the power of the

(rf) 1 fcla. Com. 379. n. 7. Chris- archbishop to consecrate, he, bishops

tian's edition. The proprietor of the in the King's foreign dominions, 26
Isle of Man was patron of the bishop* Geo. 3. c 84.

rk.k .there, but the Archbishop of York

Every

Ch. V.] Head of the Church 59

Every arcbbishoprick and bishoprick in England is of the
King's foundation (a) ; and Lord Coke establishes the right of
donation in the Crown on that principle (J).

As patron paramount of all the benefices in England, the
right and care of filling all such churches as are not regularly
filled by other patrons, belongs to the Crown; whether it
happen through the neglect of others (as in the case of lapse)
or through incapacity to present, as if the patron be attainted
or outlawed, or an alien, or have been guilty of simony, or
the like (c). Upon which ground the King hath right to pre-
sent to all dignities and benefices of the advowson of arqh-
bishopricks and bishopricks during the vacation of the respec-
tive sees. Not only to such as become void after the seizure
of the temporalities, but to all such as become void after the
death of the bishop ; though before actual seizure. And as it
is a maxim in law, that the church is not full against the King
till induction ; therefore though the bishop hath collated, or
hath presented, and the clerk is instituted upon that presen-
tation, yet such collation or institution will not avail the clerk,
but the right of presenting devolves to the King (d). And it
is said, that this privilege which the King possesses of pre-
senting by reason of temporalities of a bishoprick being in his
hands, shall be extended unto such preferments, to which the
bishop of common right might present, though by his compo-
sition he has transferred his power unto others : and therefore
when the temporalities of the archbishoprick of York are in
the King's hands, the King shall present to the deanry of
York, although by composition between the archbishop and
the chapter there, the chapter are to elect him ; and this
because the patronage thereof dejure doth belong to the arch-
bishop, and his composition cannot bind the King, who comes
in paramount as supreme patron : for of the whole bishoprick
the King is supreme patron, although it be dismembered into
various branches, as deans and other dignities; and of ancient
time all the bishopricks were of the King's gift, but after-
wards the King gave leave to the chapters to elect; yet the
patronage notwithstanding remains in the King (*).

(«) 2 lost 3. (</) Ibid. Wat*, c. 9. Co. Lit.

(*) I Iut,134,344. 388.

(c) Gibs. 763. 0) Watt. e. & 2 Rail. Abr. 343.

Where

«0 Head of the Gkttrck. [Ch. V.

Where the parson of a parish is consecrated (a) a bishop,
he thereby vacates his benefice and other dignities, and the
King whp thus occasions the vacancy has the prerogative right
of filling all the presentative benefices and dignities thus va-
cated (J). Lord Chief Justice De Grey, speaking of this right
(which is in general exerted by the archbishop of Canterbury
by the command of the King, but may it seems be exercised
by the King himself singly) observes {c\ that " it appears in
Bro. Presentment 61. to be as old as Edward the Third's, time-
It was exercised under Hen. 8. and Queen Elizabeth. The
law concerning it was doubted in Charles the Second's timet and
since, but finally determined in favour of the Crown in King
William's time, King and Bishop of London (d). This is not
a right of patronage in the King ; nor is it a right of eviction-;
for it ejects nobody : nor an usurpation ; for it is a rightful
act. But it is a contingent casual right, arising upon a parti-*
cular event, the incumbent's becoming a bishop." The patrpn
is not materially prejudiced by this prerogative, as it onty oo
tasiqns the exchange of one life for another.

On a vacancy taking place by the incumbent being made a
bishop, the King may also before the title to the bishoprick is
complete by the consecration of the bishop, and though the
advowson belong to a common person, and without his con-
sent, £ran( to the bishop a commendam refiner e% or faculty to
retain, thereby committing the vacated benefice to his care
and possession to live as ^before, with the bisboprick (i).

Where the bene^ce, being void (/*), is in the gift of some
other patron than the King, and his Majesty grants the dis-
pensation after the Bishop has been consecrated, the com*
mendam is called not a comfoendam retinere, but a comrrundam
caper e; and die patron's consent is necessary to th§ dispensa-
tion, and jnust be given in an authentic manner and mentioned
therein (g). The frule is, that no commendam can be granted
but with the consent of the patron. In granting a commendam
rettnere the JKing, who is patron by the promotion, signifies

(a) 1 Bla. Com. 389, <«) fiat 9 Bum, Ecd. Law, tiLCpm-

(6) Ld. Raym, 23, Jtnd the following mendam. Ld. Raym. 23. Com. Dig.

note. • tit. Prerogative. D. (D. 18, &c.) Hob.

(*) « Bla. R.T73. * H. ft. 333. 144. Stra. 1006.

(d) Ld. Raym. 33. 4 Mod. 202. 3 (/) Hob. 150,

Lev. 317, 382, and the case of Saint (g) Gibs. 913, 4. Hob. 152.
Jam*'* Parish. 3 Lev. 388.

his

Gh. V.] Head of the Church. 61

his consent Jby his mandate to the Archbishop to grant dispell?
sation.

A commendam may it seems be temporary or perpetual, at
his Majesty's pleasure (a). When a commendam is limited to a
certain time, the King shall present by prerogative at the end
ot the term, notwithstanding the previous graiit of a commend-
am; unless it happen that the cotnmendatory Bishop die 01?
resign before the expiration of the term; for in such case, the
church becoming void not by cession but by death or resigna-
tion, the turn ofthe Crown is served, and the patron, whoever
he be, shall present (6). It is likewise served* if the commend-
am was originally unlimited, that is (according to the language!
ofthe faculties) during the life of the person and his posses-
sion of such see;, because this amounts to a presentation,, and
therefore in this case also the right of the Crown is served, and
the patron shall next present (o). But if a Bishop who is pos-
sessed of a commendam is translated to another $ee, and so a
new tkle accrues to the Crown by a hew promotion, the' same'
commendam may be continued,' if the King please; but it
must be by a new dispensation, granting it to be held with the
new bishoprick (d).

Commendam . temporary in. r diner d may be renewed and
prolonged: that is to say* before the original incumbency Ceases
by the expiration ofthe first dispensation, a second dispensa-
tion may be granted to prevent the avoidance and continue
the incumbency (e).

Where the advowsori is in common, so that the patrons are
to present by turns, the. prerogative presentation does not pass
for the tup of the otherwise rightful patron ; for the preroga-
tive right does not supply, but only suspends or postpones the
turn of the patron, and of all the patrons,t if more than one,
and doth not take away the right of the one, and leave the
rest entire; for that would be rank injustice, and this, being.

(a) Gibs* 914. 2 Barn, Eccl. Law, cello*, of Benefices in the King's *ift,r

tit Commendam, page 6. see^ kirn, Eccl. Law, tit* Benefice, 143.

(6) 4 Mod. 212. Ld. Raym.23. , A* to the Law in Ireland witfc respect to

(0 Gibs, 915. a Bishop's losing, by his translation,

((f) Noy, 94. benefices which he held before, see Bac. .

(e) As to presentments by the King to Abr. 530, Prerogative, 1>, 9. Barn,

the prejudice of another's, right, see 25 Eccl. Law, tit. Benefice, 13$, and $-

Ed. 3. st. 3. d. By the Lord Chan- shops, 192.

the

62 Head of the Church; [Ch. V.

the act of law, nemini facit injvriam (a). And as the interven-
tion of the prerogatiye presentation does not satisfy or disap*-
point the turn of the otherwise rightful patron* neither does it
destroy the effects of a prior grant of the next presentation by
the owner of the advowson (6). If the incumbent of a donative
is made a Bishop, the King shall not present to the donative,
because such a promotion does not make an avoidance by
cession, for the incumbent is the creature of the founder, and
is not subject to ordinary and episcopal visitation (c).

When the King has in his natural capacity an interest in the
presentation, and the prerogative right happens at the same
time, the interest shall be preferred : as if the King be seized
in fee of an advowson, and create the incumbent Bishop, his
Majesty shall present as patron, that being a title precedent
to that of the prerogative (d).

If a grant be made to the King of the next avoidance of a
living, and a stranger upon the death of the then incumbent
present, and his presentee continue in six months and die, yet
the King may present another, quia nullum tempus occurrit
regi. So, if a grant be made to the King of all such pre-
sentments as should happen within twenty years, and in the
twenty years there happen ten presentments which are filled
up with a stranger, yet the King shall present to them over
again (e).

If the King be patron of a church, and he omit to present
within six months, the ordinary cannot present for die lapse,
but is only to sequester the profits and serve the cure till the
King thinks proper to present; but if in this case the ordinary
collate his clerk, and afterwards the King present, the clerk
so collated cannot be turned out without a quare impedit (f).

But, though the King may remove the patron's or stranger's
clerk that conies in upon his lapse, yet if such clerk happen
to die incumbent of the church, or if the church become void
by a bon&JSde resignation or expiration, before the King pre-
sents, the King loses the advantage of the lapse, and shall not

(0) Grocers' Company v. Archbishop Lords, May 16, 1796.'
of Canterbury, 2 Bl. R. 770. 3 Wils. (c) Agreed per Cur. 4 Mod. 213.

814. 8. C. (rf) Ld.Raym.26.

(*) Caillarid v. Troward, 2 H. VI. (e) Plowd. 243. a.

324. judgment affirmed in B. R. 6 Term * (f) Bro. tit. Presentment, 24. Camp.

R. 439, and afterwards in the House of Incmnb.il 8.

present

€h. V.] Head of the Church. 63

present afterwards, or remove the patron's second presentee,
because the King is to have but one turn, and that the next;
and if the law were otherwise, the King, by suffering many
usurpations upon his lapse, might even disinherit the patron,
and the rule nullum iempus occurrit regi is not to take place
where the King is limited to a time certain (a).

Though the King present to a church, and his clerk is ad-
mitted'and instituted, yet he may, before induction, repeal and
revoke his presentation ; and it is held in this case, that the
presenting another is a repeal in law, without any other notice
to the ordinary (6). So, where a title by lapse comes to the
King, if the King present, and his presentee is instituted, yet
the King may revoke his presentation, and so annul the institu-
tion at any time before his clerk is inducted ; or if his clerk be
instituted upon such title, and die before his induction, the
King may present another, his turn not being served by the*
institution only of his clerk (c).

All antient deans are elected by the chapter, by congi <f
Hire from the King, and letters missive of recommendation, in
the same manner as Bishops (d); but in those chapters which
were founded by Henry the Eighth, out of the spoils of the dis-
solved monasteries (e)t the deanry is donative, and the instal-
lation merely by the King's letters patent (/). The chapter,
consisting of canons or prebendaries, are sometimes elected by
each other*

It seems that the King may erect a free chapel, and exempt
it from the jurisdiction of the ordinary, or licence a subject
so to do (g). Churches it seems may be lawfully built by any
person, but the Bishop may of course refuse to consecrate
them (A).

In consequence of his prerogative in church matters, and as
founder of archbishopricks and bishopricks, the King is enti-

(«) 7 Co. 28. Owes, 2. and 148, (c) Leon.' 156. Wright v» Bishop of

Cro.filiz.44. Cro. Jac. 53. 216. Het- Norwich. '

ley, 125. Bull. 28. Moor. 269. Fitzg. (rf* Agrced fter Cur> 4 Mod. 213.

30, ^ (e i Harg. Co. LitU 95, note 3.

0) 7E.4,32. Dyer, 290, 327, 360. ii^sZ M 1M

But to free the second presentation of *'' Uibs.uw. n*

all suspicion of being obtained by fraud (g) 1 Bura> **c\. Law, tit Chapel,

in deceit of the King, it is proper that (A) 3 Inst. 203. 1. Born, Eccl.

it should make express mention of the law, tit. Church I. " The new Church

first presentation, Gibs. 795. Wats. c. Act.
SO.

3 tied

64 Head tftke Chunk. [Ch. V>

tied to the custody, and is seised of the freehold (a) of the tem-
poralities of bishops, (that is, the lay revenues, lands., and
tenements, which belong to an archbishop's or bishop's
see,) (J) daring the vacancy of the archbishoprick or bishop-
rick (c). This prerogative is of so high a nature, that a sub-
ject cannot claim the temporalities during the vacancy, by
grant or prescription (<**)• But now, by statute 14 Ed. 3. Bt* 4.
c 4, 6. the King may, after the vacancy, lease the temporali-
ties to the dean and chapter, saving to himself all advowsons,
escheats, and the like. During the vacancy, the Crown has
the right of presenting to such benefices and other prefer-
ments as fall within the time of vacation (t). And by the
statute 17 Ed. 2. st & c. 1*. the King shall have escheats of
lands of the freeholders of archbishops and bishops, when
such tenants be tainted for felony in time of vacation, whilst
their temporalities were in the King's hands, to give at his
pleasure, saving to such prelates the service th^t thereto is due
and accustomed- Accordingly, the temporalities being, in
Queen Elizabeth's hands, a copyhold escheated which waa
granted by the Queen, and it was held to be good (/)• Our
entjent Kings, and particularly William Ruins, were not only
remarkable for keeping the bishopries a long lime vacant, for
the sake of enjoying; the temporalities,, hut aW committed
horrible waste on the woods and other parts of the estate; and
to crown all, would never, when the see was filled up, restore
to the Bishop his temporalities again, unless he purchased them
at an exorbitant price. To remedy which, King- Henry the
Fi*st(f) granted a charter at the beginning of his reign, pro-
mising neither to sell, nor to let to farm, nor take any thing
from the domains of the church, till the successor was
installed (A). And it was made one of the articles of the great
charter (f), that no waste should be committed in the tem-
poralities of bishopricks, neither should the custody of them
be add. The same is ordained by the statute of Westminster

(•) 1 Wooddft. V. I~ 99* {/) Covert's Cue. Cro. EI. 74.

(*) Wats. «h.'40. 1 Bit. Cotft 48*. (g) Matt. Paris.

00 1 Bora, Eccl. Lair, tit. Bishops, (A) Bat Queen Elizabeth kept the

VI. see of Ely vacant nineteen fears, in

(4) 8 fait. 15. order to retain the revenue. Strype, 4

W 17 Bd. «. c 14. F. N. B. 32. Vol.351.

1 Bla. Com. 28ft. 6 Com. Dig. 45, tit. (i) 9 Hen. 3. c. 5.
Prerogative, D. (D. «3.)

* the

0»:V.] Head Qf (he Church. 63

the first (a)» And the statute 1 4 Ed. 3. St. 4. c. 4. (which
pernyts as we have seen a lease to the dean and chapter), 15
still more explicit in prohibiting the other exactions. It was
also a frequent abuse that the King would, for trifling or no
causes, seize the temporalities of bishops even during their
livei into his own hands ; but this is guarded against by statutes
l' Ed. S. st 2. c. 2.; 14 Ed. S. st 4. c S. ; 25 Ed. 3. St 3. c. 6.

This revenue of the King, which was formerly very con-
siderable, is now by a customary indulgence almost reduced to
nothing; for at present as soon as the new Bishop is conse-
crated and confirmed, he usually receives the restitution of his
temporalities quite entire and untouched from the Kings and
at the same time does homage to his Sovereign; and then, ancj
hot sooner, he has a fee simple in his bishoprick, and jnay
maintain an action for the profits (J).

It seems that for an enormous offence of a Bishop his tem-
poralities may be seized in manus regis (c). ' >

This King is entitled to a corody, . as the law calls it, out of
evety bishoprick: that is, to send one of his chaplains to be
maintained by the Bishop, oir to have a pension allowed hint
till the Bishop promote him to a benefice (d). This is also in
the riatinte of an acknowledgment to the King, as founded of
die s^e, fiinoe he tiad formerly the srime corody or pension
from every abbey or {mory of royal foundation. It seems to
be now fallen Into total &&s4, though Sir Matthew Hal$
says'(^) that it is due of common right, and that no prescript
tion will discharge it \ • '

Under this head may also be itiehtibned the right* tf the
Crown to the tidies arising in extra-pafoehial places, which are

(a) 9 Id 1. c.21. 1 Bla.Goiti.28S. non admifit by the kinfc, 3 Rot MS.

(*) 1 Bit. Com. 282, 3. Co. Lit*. 1. 17, ox be found guilty ioft pave *~>

61, 341. tumbravti, after a non admittat delivered.

(c) 2 RolL Abr. 228. 1. 20. In 6 to him> 2 Rol. 228. L 10 ; or upon the

Com /Dig. 46. tit. Prerogative, D. (0. death of a bishop, the kmg, by hfepre-

25.) the following instances are put : as rogative, shall have his palfrey, baton,

if he be attainted for trespass contra and ewer, and kennel of hounds; and

pacem ; for being a' prelate, a capiat process shall issue for them, if njot

does not lie against his person, 2 Rol. compounded, Sa v. 53.; see further, Vin.

228. 1. 25. or for a contempt, as upon Abr. tit. Prerogative, 17 V. 242*
an attachment in prohibition, 2 Rol. (rf) F.N.B. 230.

228. 1. 15, 30. or for not admitting a (0 Notes on RN. B, above cjtejd.

varlet to bis corody, 2 Rol. 228. h 15 : 1 Bla. Com. 28$,
s* if he be found a disturber in a pure » . .

v vested

66 Head of the Church. [Ch. V.

vested in him in trust and confidence, that he will distribute
them for the general good of the clergy (a), but which may be
granted by the King to a subject (6).

First fruits, primitive or annates, are the first yeai^s whole
profits of a spiritual preferment. Tenths or detinue^ are the
tenth part of the annual profit of each living. These were
introduced by, and originated in, papal usurpation ; and were
ascertained by valuations or rates made during the reigns of
Hen. 3. and Edw. 1* This usurpation was long maintained in
favour of the Popes, though at times violently resisted; till at
length in the reign of H. 8. it was annexed to the Crown by
statute 26 H. 8. c. S. confirmed by 1 Eliz. c 4. and a new
valor benefidortm was then made, by which the clergy are at
present rated (c). Various equitable discharges, allowances,
and exceptions were made and granted in favour of prefer-
ments of a trifling value ; and Queen Ann " in a spirit of the
truest equity," resigned this revenue to the poorer clergy, by
applying these superfluities of the larger benefices to make up
the deficiencies of the smaller. To this end she granted her
royal charter, which was confirmed by the statute f! Ann, c. 1 1.
whereby all the revenue of first fruits and tenths is vested far
trustees for ever, to form a perpetual fund for the augmentation
of poor livings. This is usually called Queen Ann's bounty,
which has been still farther regulated by subsequent sUtutes{d).

(a) 2 Tort. CVT. 2 Rep. 44. Cra S3. (e) t Bhu Com. SS4, 5.

512. 1 Bb. Com. 113. (<*) Ibid. 5 Aim. c 2*. 5 Aon. c ST.

(b) Bit*. Ab. Patents, pi. 33, cites 22 1 Geo»l. it 2. c. 10. 3 Geo* i. c. 10.
An. 15. 17 Vin. Ab. 88. Prerog. M. See 2 Bum, Ecct Law. 46 Geo* &.
b. pi. 15. c. 133.

CHAP.

Ch. VI.] Prerogative as to Parliament. 67

CHAP. VI.

Of the Prerogative with respect to tJie Houses of Par-

Itament.

We have already viewed the King as a constituent part of the
legislature; and it only remains for ns to consider in the pre-
sent chapter the various prerogatives which are more intimately
connected with the two Houses of Parliament.

It is in the power of the Crown to add any number of mem-
bers to the House of Peers, by raising individuals to thet
English Peerage (a); but it may perhaps be doubtful whether
the King has it in his power to increase the number of the
members in the lower House of Parliament, by empowering
an unrepresented town to elect, and send members to Par*
liament. It seems clear that from the time of Edward 4, until
the reign of Charles 2, both inclusive, our Kings used fre-
quently to assume and exercise this right The last time it
is known to have been exercised was in the 29 Charles 2. who
gave this privilege to Newark ; and on the legality of the grant
being then questioned for the first time in the House of Com-
mons, it was acknowledged by a majority of 125 members to
75 (&). The reason why it is doubted at the present day is,
that by the Scotch and Irish Acts df Union with England,
the representatives to be sent by the two former countries to
the united Parliament, are limited to a certain specified num-
ber; and if the King could add to the number of the English
members, the proportion would be unfair in favor of England,
to the prejudice of Scotland and Ireland : consequently it is
said this prerogative is abrogated (c). But it is submitted that
the King cannot be deprived of a prerogative, except by the
express words of a statute (d), and the Acts of Union contain
no provision on the subject. The argument used against this
prerogative of the Crown, seems to prove too much to be

(«) 1 Bla. Com. 157. 1 Wooddn. 109, b. Hargr. note 2. 2 Lord Ravin.

See post. ch. 8. 951. Power in the Colonies in this re-

(h) Commons Journ. March 1676, 7. spect, ante ch. 3.
Simeon's Law of El. 91 , 97. 1 DougU (*) See Ibid. Pref. to Glamr. Rep,

oa El. 69, 70. 1 Bla. Com. 97, note (<0 See 5 Bac. Ab. 559. title Prero-

(6), Christian's edition. See Co. lit. gatire, E. 5. post. ch. 15.

f 2' tenable.

68 Prerogative as to Parliament. £Cli. VI.

tenable. Would it not prevent his Majesty from creating or
nominating Peers to sit in the upper House? A right which
has never been disputed.

The King alone is entitled by the constitution to summon a
Parliament, nor can this power be vested in any other de-
partment of the State with equal propriety; because, to borrow
the words of Sir Win. Blackstone (a), the King is 8 single
person, whose will may be uniform and steady; the first person
in die nation, being superior to both Houses in dignity, and
the only branch of legislature diat has a separate existence,
and. is capable of performing any act at a time when no Par-
liament is in being.

There are indeed two memorable instances on record, in
which Parliament have assembled without the authority of the
King; and. have, when so assembled, effected most momentous
revolutions in the government. I allude to the Parliament
which restored Charles 2.; and the Parliament of 1688 which
disposed of the British Crown to William III. But in both
these instances the necessity of the case rendered it necessary
for the Parliament to meet as they did, there being no King to
call them together, and necessity supersedes all law. Nor ib it
an, exception to this rule, that by some modern statutes (b) on
the demise of the King or Queen (which at common law dis-
solved the Parliament, because it could no longer consult with

. hiui who called it) (c), the Parliament then in being or other-
wise the last Parliament shall revive or sit, and continue for

j six.; months after such demise, unless sooner prorogued or
dissolved by the successor: that is, if the Parliament be at the
time of the King's death separated by adjournment or proroga-
tion, it shall notwithstanding assemble immediately; or, if no
Parliament be then in being, the members of the last Parlia-
ment shall assemble and be again a Parliament. For in such
case, the revived Parliament must have been originally sum-
moned by the Crown.

By the statute 6 and 7 W. and M. c. 2. s. 1. it is declared
and enacted that Parliaments shall be holdeu once in three
years at least; by which we are not to understand that the

(a) 1 Ooaim. ISO. S*e I Cbafcner*> (c) Kclrng R. 19. 1 Cbalmat' Coll.

Coll. Op. 333, S31.< Op. 947. That dwtfa of Ring doe* not

(I) 7 and 8 W. S. c. TS. 5 Ann. e. 7. dis»We colonial aaetiibly, ante eh. 3.
1 Bit. Con. 183.

Ki-ff

Ch.VX.] Prerogative as to Parliament. €9

4

King ought to convene .within that period a new Parliament, for
as the law now stands. Parliaments last for seven years, unless
sooner dissolved by royal authority (a).

On a Parliament being called together, every lord, spiritual
or temporal, is entitled, ex debito justilia, to a writ of sum-
mons (4). This writ Issues out of chancery, and each member
should have a distinct one sent to him (c), which, as we have
already seen, he is obliged to obey (d).

4 Upon a general election of members to serve in the House
of Commons, writs of summons are issued, and directed to the
sheriff of every county, by the clerk of the Crown in the Court
of Chancery, in pursuance of a warrant from the Lord Chan-
cellor for that purpose. If a vacancy happen during the sit-
ting of Parliament, the Speaker of the House of Commons, by
order of the House, sends this warrant to the clerk of the
Crown (e). With regard to a vacancy by death, or the mem-
ber's becoming a peer, the statute 24 Geo. 3, sess. 2, c. 26.
. provides .that, if during any recess, either by prorogation or
adjournment, any two members give notice to the Speaker, by
a certificate under their hands, that there is a vacancy by
death, or that a writ of summons has issued, under the great
seal, to call up any member to the House of Lords, the
Speaker shall forthwith give notice of it to be inserted in the
.gazette; and, at the end of fourteen days after such insertion,
he shall issue his warrant to the clerk of the Crown, command-
ing him to .make out a new writ for the election of another
member. But this does not extend to any case where there is
a petition depending, concerning such vacant seat, or where
the writ for the election of the member so Vacating, had not
been returned fifteen days before the end of the last sitting of
the House, or where the new writ cannot issue before the next
meeting of the House for the dispatch of business. And, to
prevent any impediment in the exertion of this Act* by the
Speaker's absence from the kingdom, or by the vacancy of his
seat, at the beginning of every Parliament he shall appoint any

(a) 1 Geo. 1. at. 2. c. 33. men*; *id* Reg. 261 ; F. N. B. 229.

"(£) 4 lust. 1. For the form of the 4 Inst. 4.

summons, Cotton's Records, 3, 4. Of (c) 4 Tnsl. 4.

the manner of summoning King's coun- (rf) Ante di. 2. s. 2.

«el, and civilians masters in Chancery, <e) 1 Bla. Com, 177, where see the

who have no voices'; and how the writ statutes on this subject cited,
/differs from that to a lord of Parlia-

number

70 Prerogative as to Parliament. £Ch.VI.

number of members, from three to seven inclusive, and shall
publish the appointment in the gazette. These members, in
the absence of the Speaker, shall have the same authority as is
given to him by this statute. These are the only cases pro-
vided for by Act of Parliament. So, for any other species of
vacancy,, no writ can issue during a recess.

It would be irrelevant to consider here the mode of electing
and returning members, tinder the writs of summonses ; this
does not form any part of the royal authority, but is specifi-
cally provided for by various legislative enactments, which are
cited and summarily arranged by Sir William Blackstone (a)9
and other subsequent authors (6), who have written exclu-
sively on the subject.

The writs of summonses, both in the case of peers and mem-
bers of the House of Commons, ought to be under the great
seal (c), and should be issued forty days at least before the
sitting of Parliament This is a provision of the Magna Charta
of King John, faciemus summoneri, $c. ad eertum diem, scili-
cet ad termintan quadraginta dientm, ad minus et ad certum locum.
It is enforced by 7 and 8 Wra. 3. c. 25. which enacts, that
there shall be forty days between the teste and the return of
the writ of summons; and this time is, by the uniform practice
since the Union, extended to fifty days (d). This practice was
introduced by the 22d article of the Act of Union, which re-
quired that time between the teste and the return of the writ of
summons, for the first Parliament of Great Britain.

The members of each House being thus duly assembled, the
Parliament, of which the King has been termed the caput,
principium, et finis (e), cannot, in point of law, commence but
by the presence of his Majesty, either in person or by repre-
sentation ; which representation may be either by a guardian of
England, by letters patent under the great seal, when the King
is in remotis out of the realm, or by commission under the great
seal of England, to certain lords of Parliament, representing
the person of the King, he being within the realm, in re-

(«) 1 Comm. 117, &c. (rf) 2 Hat*. 235*

(6) And see 2 Bac Ab. 120, title (O 4 Inst. 1,2. Hale of Parliament

Court of Parliament, D. 1 , ante. See in 1 Chalmers9 Coll. of

(c) And see 24 Geo. 3. sess. 2. c. 26. Op. 336* a comment on these words.

s, 2. 1 Chalmers' Op. 234, 6.

spect

Ch. VL] Prerogative as to Parliament.

71

, or his being engaged in other urgent

spec* of some h
•affairs («)•

• The two Houses, respectively, possess the exclusive power
of adjourning themselves, nor can the King exercise it; and
an adjournment of one House is not, ipso facta, an adjourn-
ment of the other (b). It appears, however, to have been
nsual, when the King has signified his pleasure that both or
either of the Houses should adjourn themselves to a certain
Jay, to obey the King's pleasure so signified, and to adjourn
accordingly. Otherwise, besides the indecorum of a refusal,
a prorogation would assuredly follow; which, as it terminates
the session (c), would occasion great inconvenience to public
and private business (rf). An adjournment may be made by
the Houses not only from day to day, but for a fortnight, or a
longer period, as is usually done at Christmas or Easter; or
upon other particular occasions (e) ; but the King may, by
proclamation, call them together at the end of foarteen days
from the date thereof notwithstanding any previous adjourn-
ment to a longer and more distant day {f).

A prorogatum, which, as we have just remarked, puts an end
to the session, and may be termed a continuation of Parliament
from one session to another, can, however, be legally effected
only by the authority of the King, expressed either by the
Lord Chancellor in his Majesty's presence, or by commission
from the Crown, or frequently by Proclamation (g). As the
obligation of the members to attend arises from writs under
the great seal, their discharge from liability to assemble taust
also flow from the same seal (A). It seems clear, notwithstand-
ing the opinion of Lord Cake (i ) to the contrary, that a proro-
gation of one House necessarily and tacitly operates as a
prorogation of the other (i). This prorogation may be legally
made even at the return of the writ, and before the meeting of
Parliament (/). Thus the Parliament after the general elec-
tion in the year 1790 was prorogued twice by writ, before it

(a) 4 Inst. &
{*) Ibid. 27, 28.

(c) Ibid. 27.

(d) Ibid. 28. \ Bla. Com. 186.
<«) Ibid.

(/) 39 and 40 Geo. 3. c. 14.
{*} 1 Bla. Com. 187.

(A) 1 Chalm. Coll. Op. 234, 236.

(t) 4 Imt. 28.

(*) Sir R. Atkins's Argument, 51.
cited 2£ac Ab. 131, title Court of
Parliament, F. 1 Ma. Com. 187.

{/) 4 Inst. 7. 1 Chalmers, ubi supra.

met;

72

Prerogative as to Parliament [Cte VL

met (a); and the first Parliament in this reign was prorogued
four times, by four writs of prorogation (ft). On the day upon
which the writ of summons is returnable, the members of the
House of Commons who attend, do not enter their own House
or wait for a message from the Lords, but go immediately up
to the House of Lords, where the Chancellor reads the writ of
prorogation. And when it is intended that they should meet
upon the day to which the Parliament is prorogued for dispatch
of business, notice is given by a proclamation (c).

His Majesty's assent to a bill during a session (d) does not
end it (e) : and it seems that an express prorogation or disso-
lution is necessary for this purpose (/*). His Majesty is en-
abled to call Parliament together at the end of fourteen days
from the date of his proclamation for that purpose, notwith-
standing any previous prorogation of it to a longer period (g).

As the power of convening and proroguing Parliament is
vested by the constitution, that is, by the common law, and by
the custom of Parliament, in the King, so his Majesty possesses,
on similar grounds, the power of dissolving it (h). This can
only be done in the King's presence, either in person or by
representation (i). The effect of the demise of the Crown on
the continuance of Parliament has been already stated*

With

(a) Comm. Journ. 26 Nov. 1790.

(*) Ibid. 9 Not. 1761.

(tf) lBla.Cbm. 187, Christian'* note.
1 Cnalm. Coll. of Op. 234, 6.
. (rf) In point of law, though a Parlia-
ment meet and debate, It is no session
unless some act be passed or jndgment
given by the Parliament, 4 Inst. 28.
Hal. of P. 48. Hut. 61. Raym. 1 ST.
Lev. 442. 2Keb.529.

(*) 4 Inst. 27. 1 Car. 1. e. 7. Comm.
Journ. 21 Nov. 1554.

(/) 1 Bla. Com. 187.

(g) 39 and 40 Geo. 3. c. 14.

(A) 1 81ft. Com. 188.

(•) 4 Inst. 48. On the subject of dis-
solving Parliament in person, Mr.
Kvnnt, in his " Parliamentary Debates,"
mikes the following observations :

" ttoma Gentlemen thought that the
distill lit ion of Parliament by the Prince
Jiegeilt in person was ungracious, and
Out it win intended as a mark' of dis-

satisfaction. It certainly appears that,
fn former times, a dissolution in person
was considered an offensive act ra the
Sovereign. On the 10th of March,
16*28, the day to which both Houses
were adjourned, King Charles I. came
to the House of Lords, and without
sending for the Commons, spoke as
follows : ' My Lords — I never came
here upon so unpleasant an occasion,
it being the dissolution of a Parliament ;
therefore men may have some cause to
wonder why I should rather not choose
to do this by commission ; it being ra-
ther a general maxim with Kings to
leave harsh commands to their Minis-
ters, themselves only executing pleasing
things.1 And then, after some words,
directed tbe Lord-keeper to dissolve the
Parliament. The entry on the Lords'
journal is — Ipse Dommus Rex hoc prep-
sens Parliamentttm dis solvit. On the
28th of March, 1681, King Charles IL

suddenly

Ch. VL] Prerogative as to ParUamenU

T3

With respect to their internal arrangements, Pferliam^nta
ere, by the constitution of the country, and, indeed, their na*
tore requires that they should be, distinct from, and independ-
ent o^ Ae Crown. There are, therefore, but fetor prerogatives,
except those which hare just been considered* legally eXer-
ciseable over the two Houses. The King hbd, however, the

suddenly dissolved the Parhament then
sitting at Oxford. HU speech waa as
follows :— -• My Lords and Gentlemen
— That all the world may see to what a
point we are come, that we are not like
to have a good end, when the divisions
at the beginning are such ; therefore,
my Lord Chancellor, do as I have com-
manded you.' Then the Lord Chancel-
lor said, * My Lords and Gentlemen—
His Majesty has commanded me to say,
that it is his royal pleasure and will,
that this Parliament be dissolved ; and
this Parliament is dissolved.'— Bishop
Burnet (Hist of Own Times, V. I. p.
499.} gives the following account of this
dissolution : — ' By the steps which the
Commons bad taken, the King saw
what might be expected from them ;
so, very suddenly, and uot very decent-
ly, he came to the House of Lords, the
Crown being carried between his feet,
in a sedan : and he pnt on his robes in
haste, without any previous notice, and
called up the Commons, and dissolved
the Parliament; and went with such
haste to Windsor, that it looked as if
he was ^afraid of the crowds that this
meeting had brought to Oxford.'

"In these two instances, the dissolu-
tion in person was thought indecent and
offensive. It is true that the Parlia-
ment of 1 660 — the Convention Parlia-
ment, which restored King Charles II.
— was dissolved by the King in person;
but then, his Majesty had sent a mes-
sage to the House of Lords some days
before to signify his intention, which
message was communicated by them to
the Commons, and a conference was
holden upon it The message was as
follows*. — ' His Majesty hath expected,
ever since Thursday morning, to be iu-
foi med that his two Houses of Parlia-

ment bwd been ready to* present' inch
bills to bim es they had prepared for
his royal assent, and hath continued ever
since*in the same expectation, and hop-
ed that he might halve this da> finished
the work, and dissolved them acfiardlng
to his signification > bu t, being informed
that there are yet depending in both
Houses some few bills of great import-
ance to his and the public service,
which are not yet ready to be presented
to him y and being desirous to part with
his two Houses of Parliament, who have
deserved so well of him, in such a 'man-
ner9 that they may not be, obliged to
use more expedition in the despatch
than is agreeable to the affairs which
are to be despatched, his Majesty is
graciously pleased to declare, That he
will be ready to pass such bills as are '
necessary, in point of time, to be pass-
ed, on Monday morning j and then, th, at
the Houses adjourn tillTbursday^sotliat
they may have that day and Friday to
put an end to those most public bills
which ere not yet finished j and. bit
Majesty will, on the next day, being
Saturday the 29th of this montp, be
present with them, and dissolve the
Parliament ; and bis Majesty desirca
both Houses, against that time, to lay
aside ail business of private concern-
meut to finish all public bills.'

"Since the Revolution, Parliament
has been always dissolved by proclama-
tion, after having been first prorogued.
The dissolution, therefore, by the Prince
Regent in person was an unusual pro-
ceeding} but it does not appear, from
any thing that was said or done,' that it
was meant to be offensive. It was
adopted merely for the sake of dis-
patch."

undoubted

74 Prerogative as to Parliament. [Ch.VI.

undoubted right to be present in the House of Lords during
the debates, without going in state, or interfering in the pro-
ceedings. Charles the Second, and several of his successors,
frequently did so ; but from the accession of George the First
to the present time, the practice has been, and perhaps wisely,
discontinued (a).

It seems that, in order to make a proxy, which the members
of the upper House only can effectually and legally do, the
King's licence is in strictness necessary (6). Though, it is
said, that this is now so much a mere form that the licence may
be presumed (c).

The Speaker of the House of Lords is the Lord Chancellor,
or keeper of the King's great seal, or any other person ap-
pointed by the King's commission ; and if none be so appoint-
ed, the House of Lords, it is said, may elect one (d).

The Speaker of the House of Commons is chosen by the
House; but must, it seems, be approved by the King (e).

The discretionary power of assenting or dissenting to an
Act of Parliament is, in England, a high and incommunicable
prerogative ; though it may be communicated to the governor
of a colony, with respect to acts of the colonial assembly (f).

The royal assent to a bill (which cannot be given previous
to the meeting of Parliament, any more than the dissent can be
effectually expressed after the session has ended) (g), is pro-
claimed before the two Houses, assembled in the Lords' House,
either by the King in person, or by letters patent under the
great seal, signed by his Majesty, and declared and notified
in his absence, to the Lords and Commons. Before the assent
is given, the titles of the Acts, which have passed both Houses,
are read; whereupon, the clerk of the Parliament expresses
the assent or dissent. In case of the royal assent to a public
bill, the clerk usually declares, " Uroy leveut;" to a private
bill, " soil fail comme il est desire" If the King refuse his

(a) See 1 Adolph. on Political State (c) 1 Bio. Com. 168. Christian's irate,
of the British Empire, 195. 24.

(b) Els.ch.5. 1 Bla.Com.168. Scld. (tf) 1 Bla. Com. 181. 2 Mounton,
Baronage, p. 1. ch. 1. And it is laid 108.

down in Seld. 3 vol. 2. P. 1476. (e) Ibid. 2 Hatsell, 154. 1 Wooddn.

cited 2 Bac. Ab. 130. tit. Court of Par- 57, 59.

liament E. that a lord may be sum- (/) 1 Chalm. ColJ. Op. 316, ante

moned with a clause that he do not ch. 3.

make a proxy. (g) Ibid. 315.

assent,

Ch.VILSec. I] Fountain of Justice and Office. IS

assent, the words used a*e " J* royi mistral* When a bill of
supply is passed) it is carried up and presented to the King, by
the Speaker of the House of Commons, and the royal assent is
thus expressed, ** le rcy remercie ses loyal subjects, accepte lour
benevolence, et aussi le cod— "the King thanks his loyal subjects,
accepts their benevolence, and wills it so to be (a)."

It is not usual, except in the case of an act of grace, for sta-
tutes to originate with the King; but, without doubt, if a bill,
with the royal assent, should be sent to the Lords and Com-
mons, and receive their assent also, it would be a perfect law,
if even in the form of a charter, as was the case with Magna
Charta.

That which constitutes law is the concurring assent of all
the branches of the legislature, wheresoever it may originate,
whatever may happen to be the form of it (4).

CHAP. VII.

Of the King as the Fountain of Justice and Office, and

Administrator of tlie Laws.

Sect* I. — In general; and as to Public Courts and Offices, and

Officers.

The prerogative of creating courts and offices has been imme-
morially exercised by the Kings of England, and is founded on
the capacities of executive magistrate, and distributor of jus-
tice, which the constitution of the country has assigned to the
Sovereign (c).

Public offices are either judicial or ministerial.

It seems, that in very early times our Kings, in person,
often heard and determined causes between party and
party (rf). But, by the long and uniform usage of many ages,
they have delegated their whole judicial powers to the judges
of their several courts ; so that, at present, the King cannot

(a) 1 Bla. Com. 184. (c) Finch, L. 162. See 1 Bla. Com.

(*) Hale, Orig. and Antiq. Pari. 266, 272.
Prince's Case, 8 Co. Rep. (tf) Ibid. 3 Bla. Com. 41. 1 Bla.

Com. 267.

determine

76 Fountain of Justice and Office. [Ch. VIL Sec I.

determine any cause or judicial proceeding, but by the mouth
of his judges (a), whose power is, however, only an emanation
of the royal prerogative (b). The courts of justice, therefore,
though they were originally instituted by royal power, and can
only derive their foundation from the crown (t), have, respec-
tively, gained a known and stated jurisdiction, and their deci-
sions must be regulated by the certain and established rules of
law (tf). It necessarily follows, that even our Kings themselves
cannot, without the express sanction of an Act of Parliament,
grant any addition of jurisdiction to such courts (e) ; as, for
instance, that the Court of King's Bench may determine a mere
real action (f\ nor authorize any one to hold them in a man-
ner dissimilar to that established either by the common, or
statute law of the law of the land (g). On this ground it has
been determined, that a royal grant of a judicial office for life,
which had been always granted only at will, is void (A). So,
the King cannot grant a mere spiritual jurisdiction, as to or-
dain, institute, 8tc. to a lay person, or exercise it himself, but
must administer the spiritual law by bishops, as he does the
common law by judges (i ). Nor can his Majesty grant a com-
mission to determine any matter of equity ; but it ought to be
determined in the Court of Chancery, which has immemo-
rialiy possessed a jurisdiction in such case (£). It is a still
more important principle, that the King cannot, legally, au-
thorize any court to proceed contrary to the English laws, or
by any other rule (/). Therefore, commissions to seise goods,
and imprison the bodies of all persons who shall be notoriously
suspected of felonies and trespasses, without any indictment or

(o) Ibid, 12 Co, 64- Dae. Ab. Court*,
A, B. That the King though he may
grant, cannot execute office* himself,
see 5 Bac. Ab. 1 90, note in margin.
Co. LH. S. ». Plowdcn. 38 W 1 Ski.
305. A* ta taking the judges' opioion,
aee Fortatene, R. 384 H suhstq.

(a) 1 Blau Com. 94,

(c) 1 Rol. Ah. 361. 2 Boo. Ab,
Com*, a, B| page 96. A* to Counties
Palatinate, fito. 9 Ba* Ab. 188. I
Bla. Com. U7. Set Ibid. ¥.67.

(rf) 3 Hawk. bk. 9. ch. 1. teat. 4. page
3. iB«o, Ah. 9*.

(0 Year Book, 6 Hen. 7. 4, b. 5, a.

9 Inst. 478. 4 Ibid. 195, 197, 163, 200.
1 Wooddo. 97.

(/) Ibid.

(g) Ibid. 97, 8. 4 Inst. 163, 900,75.
9 Inet 478. 3 Hawk. b. 2. c. 1. 37. s. 6.

(h) 4 Inst. 87. 1 Sid. 338.

(i) See Cro. El. 259, 314.

(*) Hob. 63. 19 Co. Rep. 113. See
1 Wooddiv 188 to 190, and 97. Vice-
Chancellor's Act, 53 Geo. 3. c. 24.

(/) 2 Rol. Ab. 164. 2 Rush. A pp.
77. 12 Co. 113. 2 Lev. 24. 2 lost.
73. 2 Ld. Raym. 1344. 3 Hawk, ubi
wpra. 1 Wooddn.97.

legal

On VII. Sect] Fbtmtwn of Justice and Office. 77

legal process 'against them (d); or to take J. S« a notorious
robber, and to seize his lands and goods (6), are, respectively,
illegal (<t). Neither can the King grant any new commission
which is not warranted by antient precedents, however neces-
sary, or conducive to the public good it may appear to be;
and, therefore commissions to assay weights and measures,
bring of a new invention, were condemned by Parliament (d).
And Lord Coke asserts (i), that the King could not authorize
persons to take care of rivers, and the fishery therein, accord-
ing to the method prescribed by the statute of Westminster
the 2nd. ch. 47. before the making of that statute.

Subject, however, to these various restrictions, which are
constitutionally just and necessary, the King may, generally
speaking, by his prerogative, constitute any number of legal and
ordinary courts, for the administration of the general law of the
land, and appoint them to be held where his Majesty pleas-
es (/), unless, as in the case of the Common Fleas (g), the
Court must, by law, be holden in any certain place. - So the
King may issue special commissions, for doing justice accord-
ing to law, in extraordinary eases, requiring speedy remedy
and animadversion ; though in ordinary cases, commissioners
of Oyer and Terminer can be granted only to the justices ;of
either bench, or the* justices in Eyre (A)# The King, by spe-
cial commission, may appoint any person to take recognizances)
or obligations of r^cood, from one man to another; and such
recognizances, duly certified with the commission iota Chance-
ry, are binding; and though the commission be so particular
as to mention only a recognizance to be taken from A* to B.,
yet the commissioners have a general power to take a recogni-
zance from any other person (i). . It seems, that at the present
day a palatinate jurisdiction cannot be erected without an Act
of Parliament (A).

(a) 4 Ass. 5. Bra Ab. CommtaioM, it* being adjomad, M troM as the
3,15,16. 12 Co. 30,31. 2 lost 478. King's Bencbt sod Exohaqwer.to Read-
er) 2 Inst. 54. iog, on account ef the epidemical sick*
(c) And see 13 Ed. 1 . ft 1. c. 29. new in the metropolis** Mieh. T. 1 Gar.

(</) 18 Ed. 3. st. 2. c. 1 and 4. 4 1. See 3 Cro.R. 13.
Inst; 16S. (A) 19 Ed. 1. st U c. 29 and 90.

(«) 2 Ibid. 478. See 1 Wooddo. 97.

(/) I Wooddn. 97. 3 Bis. Com. (0 Bae. Ab. Execution, IX

41, 9. (*) 4 Inst 204. Cramp. Jarii. 139.

(g) Magna Charts, eb. 11. but this 2 Bac. Ab. 188. tit Courts Palatinate.
was not taken so strictly as to prevent

The

7* Fountain of Justice and Office. [Ch.VII. SccL

The Judges can, generally speaking, derive their authority
only from the Crown (a), and those who claim a prescriptive
right' to hold a judicial office, impliedly hold by royal grant (b).
The Lord Chancellor is appointed by the mere delivery of the
King's great seal into his custody (c). The Chief Justice of
the Court of King's Bench is created by writ (d). The Vice-
Chancellor (*), and the rest of the Judges (f)f are named by
letters patent

By die policy of the common law* the people choose the
Sheriff conservators of the peace, and other officers of a simi-
lar description, who were concerned in matters that affected
the public liberty (g).

The right of die people to elect Sheriff* was taken from them
by the statute 9 Ed. 2. sL 2.; and the custom now is, with
reference to various statutes, for the Lord High Chancellor,
the Chancellor of the Exchequer, the Judges, several of the
Privy Council, and other great officers of state, to assemble in
the Exchequer, on the morrow of St Martin (A), in Michael-
mas term, when three persons for each county are proposed or
selected, out of which three, one is finally appointed by the
King (>'). So that in effect the power of electing Sheriffs is now
absolutely in the Crown (£): a prerogative by no means un-
important It has even been laid down that die King may by
his prerogative nominate whom he pleases to be Sheriff^ whe-
ther thus proposed by the Judges and other officers or not (Q.
This assertion is grounded merely en* a case peculiarly cir-
cumstanced in the reign of Queen Elisabeth, (when, it should
be remembered, the doctrine of non obstanteswas in force (w), )
in which it was held (»), that the Queen's appointment of the
Sheriffs, during a time of plague, in consequence of which the

(a) 27 Hen. 8. c 24. Co. Lit. 260. 2
Bac Ab. 97.

(*) 1 Bla. Com. 24.

(e) Lamb Archeion, 65. 1 Rol. Ab.
SS5.

(<0 4 Inst 74, 5.

(e) 53 Geo. 3. c 84.

(/) 4 lost. 74, 75.

(g) 2 Inst. 558, 174. 28 Ed. I.e. 8.
Lamb, 15, 16, 1<T. 1 Bliu Con. 347.
1 Wooddn. 88.

(A) 24 Geo. 2. c. 48. a. 12.

(0 See statute* 14 Ed. 3. st 1. c. 7.

23 Hen. 6.C.8, 12 Rich. 9. c 2. 34
and 35 Hen. 8. c. 26. s. 61. 1 Bla.
Com. 340, 1 . 1 Wooddo. 89, 20. See
Christian's note 4, to Bla. Com. where
the mode of nominating sheriffs is more
particularly stated* A similar practice
hi many respects prevails a* to Welch
sheriffs, 34 and 35 H. 8. c.2fcs. 1. 1
Wm. and M. c. 27. s. 4.

(*) See Dar. 60. .

(0 Jenkins, 229. Dalt Sheriff, 6.

(m) See poet. oh. 7*

(n) Dyer, 225.

r Judges

Ch. VII. Sec. I.] Fountain of Justice and Office. 79

Judges and other officers, could not meet as usual in Michael-
mas term to appoint them, was Yalid. This is, however, in
direct contradiction to an unanimous resolution of all the
Judges (a), and the statute 34 & 86 Hem 8. c. 26* section 61-,
which recognizes the right of appointment by his Majesty only
in case persons have been proposed to him by the assembly in
the Exchequer: and there seems no legal ground for support-
ing this doctrine at the present day. As the power of electing
Sheriffs was originally in the people, the statutes which vest
the right of appointment in others, must on principle be ob-
served. However the practice of occasionally naming what
are called pocket Sheriffs by the sole authority of the Crown,
has uniformly continued to the reign of his present Majesty (6),
though no compulsory instances have occurred: and if the
point came judicially before the courts of law, it can hardly be
doubted that the legality of the practice would be denied.
Anciently in some counties the Sheriffs were hereditary; as it
seems they were in Scotland till the statute 20 Geo. 2. c 43-,
and still continue in Westmoreland (c). And the city of Lon-
don possesses by royal charter the inheritance of the Shrievalty
of Middlesex (</). Sheriffs, by virtue of several old statutes (e\
are to remain in office no longer than one year, and therefore
it seems that the Grown cannot authorise them t# remain in
office for a longer period (/).

Coroners are still choeen by all the freeholders in the county
Court (g): and though they are removable by the Lord Chan-
cellor for misbehaviour (A), still the choice of those who aee
to supply the place of the delinquents, can be legally made
only by a majority of the freeholders.

The right to name Justices of the Pease was vested in the
Crown by statute 1 Ed. 3. c. 16 (*). They are appointed by
the King's commission under the great seal (4) ; but in select-
ing individuals to fill this important situation, the Crown must

(a) ft In*. 559. 1 Bla. Com. 341, 2. Bla. Com. 342, 343. 4 Co. R. 32.

(b) l Bla. Cora. 349. (g) 2 Inst. 558. 1 Bla. Com. 347.
(0 Hatg. Co. lit. 3*6. 1 Woodda. 103.

(d) 2 Inst. 382. 1 Bbu Com* 339, (A) 3 Atk. 184. See 55 Geo. 2. c. 19.

340. 1 . 6.

(0 14 Ed. 3. c.7. 42 Bd. 3. c. 9. (t> See Lamb. 15, fee. 20. 4 Ed. 3.

23 Hen. 6. «. 8. c 2. 18 Ed. 3. ft 2. c 2. 1 Bla.

(/) 4 Hawk. bk. 2. c. 37. *. 29. Com. 350, 1.

Bac. Ab. Sherife, E.j see, faowever, 1 (*) Ibid.

ascertain

80 Fountain of Justice and Office. fCh .VII. Sec. L

ascertain whether thtey are sufficiently qualified according to
the several statutes (a) on the subject. These magistrates
being appointed by the* King, his Majesty may determine
their commission at his pleasure, either expressly as by writ bf
discharge under the great seal, or by writ of supersedeas; or
impliedly, as by making a new commission, and leaving out
the former Justices9 names (6). But where the King constitutes
a Mayor, &c. by charter, and by express words (c) in the char-
ter enables him to act within certain limits as Justice of the.
Peace, such Justice is not removeable merely at the pleasure of
the Crown (d).

With respect to public offices merely of a ministerial nature,
we may observe that though his Majesty cannot execute them
himself (*), he has an undoubted prerogative right to appoint
officer* to fill them, who are removeable at pleasure; as for
instance commissioners of the customs, excise, stamps, &c
postmasters, and other persons of that description, whether
of a higher or lower degree {/). And his Majesty seems to
possess a right to constitute even new ministerial offices, and
appoint officers to fill them (g), subject, however, to various
frnportaht restrictions, introduced by the* laudable jealousy of
common law principles. Thus, it is not in the power of the
Crown to create any new office inconsistent With the constitution
or prejudicial to the subject [h). Therefore an office granted by
letters patent, for the sole making of all bills, informations, and
letters missive inf the aounty of York (/), or for registering all
strangers within the realm, except merchant strangers, though
no fees be attached to it (it), is void. So all new offices in which
the jurisdiction or authority of the officer is not ascertained and
specified in the grant) are on that account merely invalid (/).

(a) Cited 1 Bbu Com; 352, fee. Overseers of the Poor, Ibid. 360. Va-

(b) Dalt. c. 3. Lamb, 67. Moor, riom offices immediately under the
187. 4 Inst. 165. 1 Bla. Com. 353. Crown were abolished, by 22 Geo. 3.

(c) See 2 Lord Raym. 1030. c. 82.

(tf) Dalt. c. 3. See 1 Ld. Raym. 32. (g) 1 Bla. Com. 272.

Burn's Just tit Justice of Peace, 2. (A) 2 Inst 540. 2 Sid. 141. Moor.

(e) Co. Lit 3. b. ante. 70, note a. 808. Rol. Rep. 206. 4 Inst 200.

(/) 1 Bla. Com. 335, 6. We before (t) Jones' Rep. 231.

considered the King's power to ap- (*) 12 Co. R. 116.

point military and maritime officers. (/) 4 Inst 200. And see Year Book,

As to the appointment of constables, 9 Bd. 4, 10, 2 Sid. 141. Bao, A*.

Salk. 150. 1 Bla. Com. 335, 6. Sur- Offices, ,B.

▼eyorsof the highways, Ibid. 958. And

Nor

Ch. VII. Sec, I J Prerogative as to Offices, $c. 81

Nor can the King create any new offices with new fee* annexed
to them, or annex new fees to old offices, for this would be a
4a* upon the subject, which can only be imposed by Act of
Parliament (a).

Upon the establishment of the feudal law our Kings fre-
quently granted lands to their subjects, reserving some hono-
rary services to be done by the grantees and their heirs, to the
King himself: such as to carry his banner, or his sword, or to
be his sewer, carver, or butler at his coronation. This was
called tenure by grand, serjeanty, and the right of performing
these services was considered an office of great honour, many
of which still exist and are claimed to be exercised M erery
coronation (6).

There are various inferior offices inseparably annexed to
others of a superior nature (c), and in this ca*e it is an
established rule that the superior office must be , granted
with all its antient rights, privileges, and appurtenances.
Hie King cannot reserve them to himself, or grant them to
another, even though the superior office was vacant at the
time{ri).

Ami office Gemot be granted for any other term than that for
which it had immemprially been granted (<). There are many
offices which may be, and are, inheritable by the lineal des-
cendants of the first grantee of the office (f). (Various great
offices of state have been holden in this manner : as the offices
of Steward, Constable, Marshal, great Chamberlain, and

(a) 2 lost. 553. 34 JEd. I. st 4. c 1. aw named by the chief justice of (be

1 Bla. Com. 272. See the statute 22 Common Pleas, Ibid. The justices of

Geo. 3. c. 82. s. 2. assize appoint the clerks of assise, Ibid.

<*) Lit. ». 153. 1 Inst 105, k 10V, * (4) Mitttn's Case, 4 Co. 3Q. Dyer,

b. 3 Cruise Dig, 1 33. 115, a. pi. 25. [2 Id. Raym. 1038. Bac.

(c) The county clerk is appointed by Ab. Offices, C. By the grant of an

the sheriff, and his situation is incident " office " a house or land belonging

thereto, 4 Co. 32, 4, a. Jenk. 216. thereto impliedly pass. Vaugn. 178.

4 Mod. 161. The chamberlain of the Co. Lit. 49, a.

King's Bench office is named by the (<?) Bac. Ab. Offices, H. What

marshal, 2 Ld. Raym. 1038. 2 Salk. offices may be intailed, 3 Cruise,

439. The Lord Chancellor and chief 147. 1 Inst. 20. a. Collins, 181. 7

justices of the King's courts at West- Rep. 33, b. 1 Rol. Ab. 838, and are

minster, appoint several officers in their subject to dower and curtesy. 1 Inst 32,

respecttTe courts. 3 Crui?e Dig. 134. a. 29, a. Plowd. 379. Collins, 5.

Bac. Ab. Offices, C. They appoint their (/) See 3 Cruise Dig. 141, 2. 2 Bro.

clerks; the Lord Chancellor appoints Pari. Cat* 167.
cnniton and extgenters : and phttazers,

a Seneschal

82 Prerogative as to Offices, %c. [On VII. Sec. I.

Seneschal of England (a) 5 and the offices of sheriff, gaoler,
park-keeper or forester, steward or bailiff of a manor, have
also been legally granted in fee-simple (b). This interest in
offices is generally if not universally inapplicable to judicial
offices of trust, which are not grantable for a longer estate than
for life; because they should be exercised only by persons of
skill and capacity, and if grantable for a longer estate than for
life, they might become vested in persons wholly unfit to fill
them (c). For the same reason they cannot be granted for
years (d); nor can a judicial office, or an office partly judicial
•and partly ministerial, without an express custom, be granted
in reversion, for he who at the time of the grant in reversion
may be able and sufficient to fill the office, may before it falls,
become insufficient (e). But they may be granted for years,
determinable on the death of the person to whom they are
granted; for in this case they cannot go to executors or ad-
ministrators (f ). Mere ministerial offices are not subject to
this rule, and may in general be granted in reversion (g) or for
years (h)h

Offices may be granted at will, of which there are many
instances (1); and it jk a general common, law rule, upon-
whjcK,. however, various exceptions have been eftgrafted • bp
statute, that the King may tertninate at pleasure the autho-
rity of officers employed by his Majesty. . The Lord Chancel**
lor holds his high situation only during the King's pleasure (#),
and the twelve Judges of the courts of common law formerly
held them on the same footing (/) ; but, by legislative provi-
sion, they (01) and the Vice-Chancellor (n) hold their respec-
tive situations during their good behaviour, which gives them,
in legal contemplation*, an estate for life, as their good beha*

(A) 3 Cruis. Dig. 141, 2. Bac. Ab.
Offices, H. .

(ft) Dyer, 285. 7 Co.. R. 33. PlowcL
2; 379, b; 381, a. 2 Inst 382. 2
Rol. Ab. 153. 9 Co. 48, 97. Bac. Ab.
Officers, H.

(c) 5 Bac. Ab. tit Offices, H. 3 Cruis.
142.

(rf) 8 Co. 95. See other autaoiities
cited, 5 Bac. Ab. 201, title Offices, H.
See 3 Cruis. 144. 2 Show. R. 171.

(*) Co. lit. 3, b. and note 5. 1 1 Co.
Rep. 2, 4, a. 2 Ventr. 188. Can.
Temp. Talb. 99. 5 Bac Ab. 202. 3

Cruis. 145; but see March. 42. Dyer,
295.

f/). Sutton's Case, 6 Mod. ,57, :

(g) Bac. Ab. Offices, &c. I.

(A) Ibid. Hardr. 46.351. See va-
rious instances put in 5 Bac Ab. 201.
tit. Offices, H.

(i) See 9 Co. Rep. 91, a. Dyer,
176, a. 5 Bac Ab. 202.

(k) See 1 Sid. 338. 4 Inst. 87.

(0 4 Inst 74, 75, 117.

(«) 12 and 13 W. 3. c. 2.

(n) 53 Geo. 3. c. 24.

viour

Ch.VII. Sec. I.] Prerogative as to Office^ §c. 83

viour is presumed by law (a), and of such good behaviour, it
teems, Parliament only can judge (b). The Judges do not
lose their situations even by the demise of the Crown (c).
However, the Vice-Chancellor and the Judges may be, re-
spectively, removed on the address of both Houses of Parlia-
ment (rf). By the common law, the demise of the crown de-
termined all patents created by royal authority; but by the
statutes 7 and 8 Wm. 3. c. 27., and I Ann, c. 1., all patented
officers are to continue six months after such demise, unless
sooner removed by the new King.

Judicial offices cannot be granted to two or more persons,
unless there be an immemorial custom to sanction such grant,
(for antient offices must be granted as they immemorially
have been granted;) though a new judicial office may be
granted to more than one person, if there be no statute to the
contrary ; and it is clear that ministerial offices may be granted
to two or more persons jointly (e).

As public offices are instituted, in legal contemplation, for
the benefit of the State, and as it is highly important that the
various duties attached to them should be properly performed,
it has ever been a rule, that such persons only are eligible
whose capacities and habits are adapted to the situation to
which they are nominated. " If," says Lord Coke (/), M an
office, either in the grant of the King or a subject, which con-
cerns the administration, proceeding, or execution of justice,
or die King's revenue, or the commonwealth, or the interest,
benefit, or safety of the subject, or the like ; if they, or any of
them, be granted to a man that is unexpert, and hath no skill
and science, to exercise or execute the same, the grant is
merely void, and the party disabled by law, and incapable to
take die same, pro commodo Regis et poptdi ; for only men of
akill, knowledge, and ability to exercise the same, are capable
of the same, to serve the King and his people."

<o) 1 Rol. Ab. S44. 1 Inst 42, a. 289. 2 Sulk. 465. 5 Bac. Ab. title

1 Show. 426, 506. Offices, K. See 1 Bla. Com. 40, 41, as

(4) 1 Wooddn.88, 121. to appointing more than (bar judges to

(<) I Goo. 3. e. 23. See Ld. Rayat. act in K. B.

747. Com. Jonra. 3 March 1761. (/) Cv. Lit 3, b. Godb. 391. Hardr.

(d) See 5 Bac Ab. 201. 130. Dyer, 175. Jenk. 121. 3 Cruise

(«) See 4 lust. 146. 11 Rep. 3, b. Dig. 152. 5 Bac. Ab. 203.
. Carth. 213. 4 MbsVl& 1 Show. R.

g2 This

8* Prerogative as to Offices, $c. [Ch. VII. Sec. I.

This doctrine holds peculiarly strong in the case of offices of
a judicial nature, or other offices in which capacity and skill
are requisite ; and the insufficiency of an individual, to whom
such an office is granted, incapacitates him, and avoids the grant,
though it be to him " and his assigns," or the office is to be
exercised by " a sufficient deputy (a)." The insufficiency may
arise either from want of mental capacity, or from the party's
not having been brought up to, or exercised, in, the offipe to
which he is appointed; and there are instances in our books,. of
persons having been refused admittance into offices in the courts
of justice, which had been granted them by the King, on both
those grounds of incapacity (&).

Ministerial offices may be granted to any persons, and, even
to women, if they are capable of performing them properly (c):
but it seems, that even in the case of ministerial offices, an in-
capacity to execute them with propriety and effect, would form
a legal ground of objection (d). In this case, however, the ob-
jection is obviated, if the grant authorize the exercise of. the
office by deputy ; or contain any other provision by which the
deficiency of the immediate grantee is supplied. Therefore,
where the office of Registrar to the Bishop of Rochester was
granted to J. S., who was an infant of twelve years of age at
the time of the grant, to hold after the death of T. D. (who
was the Registrar in possession) for vhis life, to be exercised by
Km " or his deputy,*' and afterwards T. D. died* ,J. & being
at the age of thirty ; this was held a good grant at the time of
making the office, being to , be executed by him " or his de-

i?uty,to"

The grant of an office should regularly be under the great
seal [f). No investiture, or ceremony, is in general necessary
to perfect the grantee's title to the office, which becomes vested
in him merely by the /grant (g) ; though such grant may be ren.

(a) Hob. 158. Only ministerial of- 153. Other cases cited, Bac. Ab., Of-
fices can be exercised by deputy. Bac. fices, I. Co. Lit. 3, b. Hsrgr. note 4.
Afc Offices, I* « (/) 3 Cruise Dig. 135 ; see post.

(b) See Dyer, 150, b. . Bra. Ab. title ch. 16. s. 2.

Office, 48. Cro. Car. 557, 565. 4 Mod. (g) Mod. 123. 5 Bac. Ab. tide Offices,

30. See Bac. Ab. Offices, I. E. page 188. It is said, Leon. 248.

(0 4 Inst. 31 1. Qro. Jac. 1*1. See Mod. 123 ; but see Rol. Ab. 154 ; that

3 Cruis. Dig, 153. investiture is necessary in order to make

(<0 See Co. life 3, b. note 4. a person created an herald at arms, a

(0 Cro. Cat. 279, 556. * Rol. Ab. complete officer,

dered

Ch. VIL Sec.LJ Prerogative as to Offices, &;c. 85

dered ineffectual by neglect of the party to take the various
oaths before Alluded to (a).

In creating a new office ajJt words must be used; therefore
in this case the words erigimus, constituimus, or other expres-
sions of a similar import are necessary ; and the word concessit
mus, &c. will not suffice (£).

Offices may be lost; among othfer means, 1. By misconduct
therein : 2. By acceptance of another office incompatible with
that the person holds : S. By the determination of the thing to
which the office was annexed (c).

We have already extracted from the various rules relating
to offices, this important principle, that as they are constituted
for the public weal it is expedient that they should be properly
executed (d). On this principle a condition is tacitly and pe-
remptorily engrafted by law on the grant of all offices, that
they be executed by the grantee faithfully, properly, and dili-
gently : on breach of which condition the office is forfeited or
liable to be seized (e). This principle has ever been admitted :
the difficulty has arisen in the application of it The most
methodical and perspicuous mode of stating the cases on this
part of the subject, will perhaps be adopted, by considering
successively the three causes of forfeiture or seizure of offices,
mentioned by Lord Coke, namely, 1st, abuses ; 2dfy, non-user ;
Srcfly, refusal {/).

Abusing or misusing an office is, where the person filling it
is guilty of any act contrary to his duty ; as if a gaoler is guilty
of a voluntary escape (g), or is repeatedly guilty of a negligent
one (A). So, if an officer sell his office illegally (/), or if a
forester or park-keeper cut down wood, kill deer without autho-
rity, or pull down any lodge or house within the park, they
respectively forfeit their offices (£). And an officer in the courts
of justice has been discharged for spoiling records, in violation

(«) See ante, ch. 2. •. 2. . 2 Bulstr. 58. 2 Inst* 43. Bk. Ab.

(6) Bac. Ab. Office*, B. RoL Ab. Gaol »nd Q<*1**, D- &

15*. (A) Year Book, 39 Hen. 6. 33. 2 RoL

(0 3 Crow. 165. Ab' ,55- N- **• *> S; * Vtm' 173'

(if) Ante, 83.

Bac Ab. Offices, M. Burr. SOOT.

(t) Stat. 5 and 6 Ed. 6! c. 16. Co.
• (e) Year Book, 11 Ed. 4. 1, b. 2 Rol. Lit 5g4. a A$ b ^ ^ offic^ ^

Ab. 155. Co. Lit. sect. 378. 233, a. Dac# Ab q^^ p

if) 9 Co. Rep. 50, a. (*) 9 Co. R. 50, a. Cro. El 285.

(?) Dyer, 151, b. 2 RoL Ab. 155. Co. Lit. 233, b.

Of

3

86 Prerogative as to Offices, %c. [Ch. VII. Sec.I.

of his duty (a). But it seems, that misbehaviour, under an
erroneous though conscientious impression, will not of itself
create a forfeiture (b)9 if it do not evince, from being often re-
peated, a general incapacity to execute the office (c).

By non-user (d) must be understood, a general neglect of the
proper officer to attend to his duty, at usual, proper, and con-
venient times and places. A few instances of omitting to at-
tend, when no particular business was expected, and without,
any particular circumstances, and where the non-attendance
was conscientious, do not, it seems, amount to a forfeiture (e).
It must appear, that the officer took no manner of care of his
office (/)> though perhaps one instance, or certainly two in-
stances, of a wilful, voluntary, and determined neglect to attend
on a particular occasion, would cause a forfeiture (g), though
no inconvenience ensue by such non-attendance (A). Lord
Coke (i) takes this distinction, that when the office concerns
the administration of public justice, non-user of itself, without
any special damage, may occasion a forfeiture, aliter as to pri-
vate offices.

As to refusal, that also forms a ground of removal, in cases
where the officer refuses, on request, to exercise his office
where he ought; as if the steward of a manor refuse to hold a
court when requested by the lord (Jc). The refusal must, how-
ever, it should seem on principle, be of a wilful, voluntary, and
culpable nature (/)•

These conditions, in law, are as strong and binding as
express conditions, and an office is lost for ever by the non-
observance of them (m). If the tenant in tail of an office com-
mit a forfeiture, this shall bind the issue (n), and the act of the
deputy may create a forfeiture of the inheritance (o). But the

(a) Pilkington'sCase, 1 Keb. 597.

\b) See 4 Burr. 2003, 4; 1 lb. 540, 1.

(r) See ante, 84.

<</) 9 Co. ,50, a.

(t) See 4 Burr. 2005. 1 Burr. 540,
1.

(/) 1 Hawk. P. C. a 66. s. 1. p.
1«7, 8. See Co. LiL 253, a. and the
books referred to by Hawkins: see
however Cro, Car. 491. A filazer of
C. B. being absent two years, and hav-
ing farmed out his office from year to
year without the license of the court,
«as discharged by C. B. in open court.

Dy. 1 14, b. pi. 64. Rot. Ah. 155. & C

(g) Ld. Raym. 1237. Burr. 2005, 6,
J Burr. 540, 1.

(A) Ibid.

(t) Co. Lit. 233, a. 9 Co. 50. 5
Bac. Ab. 210.

(*) 9 Co. 50, a.

(/) See Burr. 2004.

(m) Co. Lit 233, b. See 5 Bac. Ab.
211, tide Offices, M.

(n) 7 Rap. 34, b. 5 Bac. Ab. 212;
tit. Offices, M .

(o) Bro. Ab. Deputy, pi. 7. 5 Bac.
Ab. 209.

commission
6

Oh. VIL Sec. I,] Prerogative as to Offices, §c. 87

commission of acts amounting to a forfeiture, by an officer who
holds for life or for years, does not affect the person entitled
to the inheritance in remainder or reversion (a). And if a
person having an office of inheritance lease it, for life, and the
lessee commit a forfeiture, this shall not forfeit the inherit?
ance (£). Where an office is granted to two, aqd one qf
them is attainted, the other shall not forfeit (p).

The general rule is, that if *n officer* who Isolde hia office
by patent, coop&it an act incurring a forfeiture, he- capaot be
turned out without a scire facias, nor can he be said to be conn
pletely ousted or discharged, without' a writ of discharge ; fo*
his right appearing of record, the same must be defeated by
matter of as high a nature (d\

2. A person may also lose an office merely by the acceptance
of another office incompatible with that he already holds. Officef
are incompatible, and cannot be holden together, when, from
the nature or extent of the different duties and. businesses
attached to them, they cannot be properly and effectually exe-
cuted by the same person; or when they are subordinate to, or.
interfere with -each other* which creates a legal* presumption/
that they will not he executed with impartiality and honesty (* )♦
Thus* an admiral commanding on a station loses his right to
officiate there* by accepting a domtaand on another station
to which he is appointed (/). A Jodge of the Court of Com-
mon Pleas loses his office by being appointed, and by becom-
ing a Judge of the Court of King's Bench (g). A coroner
ceases to be such by being a sheriff (A). Numerous other
faftancp*, founded cm the principle that a person cannot
hold at the same time two offices, one of which is subordinate
to, and under the controul of the other, are to be met with (d).
The doctrine holds, though the new office accepted by the
party is inferior to that which he held before (£). And where
the offices are incompatible, the office which the party first

(a) Ibid. 7 Rep. 34, b. Popbam, 580. 3 Mod. 335. 3 Lev. 288.

119. Bac Ab. Goal and Goaler, D. 2. (e) 4 Inst 100. Bac. Ab. Offices, K.

(4) 8 Le*. 71. 3 Ibid. 288. (/) 1 Hen. Bla. 866.

(c) Wowd. 878 ; ISO. 5 Bae, Ab. ($) Dyer, 159. Cra, Car. 18.

813. (A) Bac Ab, Offices, K.

(<f) See Dyer, 155, 98, 211. 9 Co. (t) See Ibid. Cases cited, 8 T. R.

98. Co, Lit. 233. Cro. Car. 60, 1. 85, fcc

Sid. 81, 134. 8 Co. 44, b. Rul. Ab.' (*) See 2 T. K. 81.

held

88

Pardons, Reprieves, <§r. [Ch.VII.Sec.I;

held is impliedly surrendered or vacated, by the acceptance of
the new situation (a).

' 3. An office may be lost by the destruction of the thing to
which it is incident (b)z as if a person grant the office of
Packer, and afterwards destroy his park, the office, together
with all casual fees annexed to it, is gone (c). For the office,
being only an accessary, must follow the fate of the principal.
For although the grantor of the office could not appoint ano-
ther person as long as the Park continued, yet when the Park
itself was determined and disparked, the office which was
appendant thereto, should also be determined. And it was
said that if one grant the office of Steward of a Manor, with all
profits of courts, and the Manor is afterwards destroyed, the
office of Steward, together with the casual profits annexed to
' it, is determined.

SECT. IL

As to Pardons, Reprieves, $c. ,

1st* In general. Uly. When and hem far the King nay Pardon,
. and of Dispensations, Non Obstante^ and Reprieves. Sdly.
Manner of Pardoning. Mhly. Effect of a Pardon.

1st. In general.

Thb policy of pardoning public offenders in any case has
been questioned by Beccaria (rf), who contended that clemency
should shine forth in the laws, and not in the execution of
them. It would certainly be impolitic to remit the punish-
ment attached to an offence very frequently or indiscriminately.
Few measures would tend more strongly to embolden offen-
ders; and nothing could more effectually introduce a con-
temptuous disregard of those laws whkh were intended to pro-
tect society. It should however be remembered that human
institutions are fallible, and must in many respects be imper-
fect No human faculties can anticipate the various temptations

(a) 3 Burr. 1616. * T. R. 87, 88.

(6) 3 Cruise Dig. 169.

(r) Howard'g Cue. Cro. Car. 59.

(tf) See Beccaria on Crime* and Pu-
nishments, ch. 46.

# *

which

Oh. VlLSec.IL] Pardon*, Reprieves, $c. 8p

which nay urge a sum to the commission of an offence; or
foresee all the shades in the circumstances of a case which may
extenuate the guilt of the accused* An offence may be
within the letter, but foreign to the general .scope, and spirit
of the law. " If we consider accurately the nature of human
punishment, we shall find it attended with unavoidable im-
perfections. How short is our discernment 1 The sprface of
things and actions is alone exposed to our view: the inward
thoughts, the habitual temper, which form the greater j>ajt of
moral conduct, are entirely concealed from us* It i&iqr this
reason that laws assign the same name, nature, and penalty to
all offences, which bear a conformity in outward resemblance,
though intrinsically varying from one another, by a thousand
circumstances, known only to the Searcher of hearts (a)/'

As, therefore, society cannot sufficiently provide for .every
possible transgression of its ordinances, and measure by antici-
pation the degree of guilt which may attach to the offender,
it has entrusted the King with the power of extending mercy
to him. The coronation oath requires the King to temper
justice with mercy; and it was the expression of the unfortu-
nate Lord Strafford, that " the King condemns no man : the
great operation of his sceptre is mere/'— a generous principle,
which seems. to have been sometimes acted upon in this coun-
try, even in the worst and more dreary periods of our his-
tory.

The King is, in legal contemplation, injured by the com-
mission of public offences ; his peace is said to be violated
thereby, and the right to pardon cannot be vested more pro-
perly than in the Sovereign, who is, from his situation, more
likely than any other person to exercise it with impartiality,
and to whom good policy requires that the people should look,
with submissive respect, as the head of the nation, and su-
preme guardian of the laws. It seems, that anciently the right
of pardoning offences, within certain districts, was claimed by
the lords of marches and others, who possessed^wra regalia (b) ;
but the statute 27 Hen. 8. c 24. s. 1. vests the sole right of
pardoning in the King. This right, or rather prerogative,
belongs to a King de facto, and not to the King dejure, during

(a) Considerations on the Law of For- (5) Co. Lit 114. 3 Inst. 235. Bac

feiture for High Treason, 1748, by the Ab. Pardon, A.
Honourable Mr. York*

the

90 Pardons, Reprieves, <$r. [Ch. VII. Sec II*

the usurpation of the former (a). It is an incommunicable
prerogative (b) ; except, perhaps, in the colonies, where, by
grant from the Crown, it may be exercised by the governor,
&c» (*)• And, by statute SO Geo. S. c. 47. the King may, by
commission under the great seal, authorize the Governor, &c*
of New South Wales, && to remit the whole or *ny part of
the term for which offenders may have been transported (ri)«

2dly. When and ham far the King may pardon ; and of Dis-
pensation^ Non-obstantes, and Reprieves.

The King's right to pardon and remit the consequences of a
violation of the law, is confined to eases in which the prosecu-
tion is carried an in his Majesty's name, for the commission of
some offence affecting the public, and which demands public
satisfaction, or for the recovery of a fine or forfeiture, to which
his Majesty is entitled. Nm potest rex gratidm facer eeum mjuriA
tt dam*o mli*rvm{e)> Hence, ha Majesty hat no legal right
to pardon a person found guilty on an appeal of minder, &e»
it being a proceeding instituted at the suit, and in the najne«of
a private individual (/) ; though, it seems, that his Majesty may
pardon the burning of the hand, which is inflicted by statute
on a conviction of manslaughter, on an appeal, such puntshf
ment being collateral to the ohjectof the appeal, and intended
as a satisfaction to public justice (g)* Nor can the King's
pardon be considered a legal discharge of an attachment for
nonpayment of costs, or non^perfonnance of an award, &c (A),
for though such attachment is carried on in the shape of a cri-
minal process, for a contempt of the court, yet it is in effect*
and substantially a civil remedy, or execution for a private
injury (i). So, where any legal right or benefit is vested in a

i

i

(*) Bra. Ab. tit Charter de Pardon, a. 33. 4 B>a* Com. 398. 1 Cbitty's

22. Crioi. Law, 762, 3, 4. See the late Act.

(&) Jenk. 171, pi. 36. Hob. 1*3. (*) 5 Co. Kep. 50, a. 2 Hawk. F.

155. 7 Co. 36. Mo. 764. 27 Hen. 8. C.c. 37. s. 39. See Cro. El. 682 j bat

«•**• •• 1. see Moor. 571. 1 Stnu 529, 30, pet

(c) Ante, ch. 3. Eyre, J.

00 See 2 B. and Aid. 25S. (A) 4 BU. Con. t85.

(0 3 Init 236. (i) itfd. 2 WUlea, R. 292, note b*

(J) Ibid. 237. Hawk. bk. 2. c. 37. 16 East, 300, 1.

subject,

Ch.VII. Sec-IL] Pardon*, Reprieves, $c. 91.

subject, the King caimot affect it ; and, consequently, Where a
statute gives a right of action to a party grieved, by the com-
mission of an offence, though it be of a public description, his
Majesty has no power, by law, to prevent the ptfrty aggrieved
from bringing his action, even by pardoning the offender before
it is commenced (a), nor can his Majesty discharge a recogni-
zance to keep the peace towards an individual before it is for-
feited, private security being the object of the instrument (4).
And, though the Crown may legally pardon an offence against
a statute, which gives a right of action to a common informer,
before the action is begun, and may consequently defeat it (c) ?
yet, when the informer has commenced the action, his right
to the penalty is, ipso facto, irreversibly vested in him, if he suc-
ceed, and the King cannot deprive him of it (d). In short* the
general principle is clear, that the King cannot pardon incased
where no interest is, either in point of feet, or by implication
of law, vested in him(e)*

The right to pardon obtains, however gross and criminal the
offence may be, as in the case of a murder, rape, &&; tbqugh
certain peculiar fcrato must in such instances be observed* as
will be noticed hereafter.

It is generally laid down in the books, that the Grown can*
not pardon a common nuisance while it remains unredressed,
and is continuing; so as to prevent an abatement of it, or a
prosecution against the offender : though his Majesty might
afterwards remit the fine(/). As the continuation of a
nuisance is, of itself a fresh offence in point of law(g); this
doctrine may be supported cm the ground that the King can*
not, as we shall presently see, dispense with the laws by any
previous licence. Besides a prosecution for a nuisance, though
technically criminal, is in substance and effect a civil remedy ;
and the King cannot subject the public to inconvenience by
bestowing a favour on an individual or a few persons. There
seems, however, to be some reason for the assertion (A), that

(a) 3 Inst 238. Plowd. 487. 2 Rol. (/) 12 Co. 30. 2 Hawk. b. 2. c 37.
Ab. 178. CraCar. 199. Keilw. 134. s.33. 4 Bla. Com. 398. Bac. Ab.
Stra. 529, 30 ; 1272. 2 Term Rep. Pardon, B. Bat bow the fine does pot
569* belong to the Crown, on indictment for

(b) 3 Inst. 238. 12 Co. 30. Hawk. suffering a highway to continue in ba£
b. 2. c 37. s. 34. Dick. Seas. 422, repair, 13 G. 3. c. 78. s. 47. 1 Bla.

(c) Sec Ibid. R. 602.

(<*) Ibid. 3 Inst. 338. 4 Bla. Com. (g) See Ld. Raym. 370. 713.

398, 9. 2 Stra. 1272. (A) 3 Inst. 237. Vaugh. 333. 5 Bac.

(«) See also Stra. 1272. Ab. 286.

such

92 Pardons 9 Reprieves, fyc. [Ch.VII. Sec. II.

the pardon will save the party from any fine to the time when
such pardon was graiited : in this case the objection that the
King cannot by previous licence dispense with or suspend the
operation of the laws, does not apply. The Crown may par-
don mala praxis (a).

The King's prerogative right to pardon violations of the
law is not confined to offences punishable at common law by
indictment. HU Majesty may by a charter of pardon dis-
charge not only a suit in the spiritual court ex officio; but also
any suit in such court ad instantiam partis pro reformatione
morum or salute anintoe; as for defamation, or laying violent
bonds on a clerk, &c. (£), But the King cannot, by pardon-
ing, discharge any suit in a spiritual (or other) court in which
the plaintiff seeks to recover any property ; or in which an

;. interest is vested in him : as in the case of a suit for tithes or
.legacies (c).

The King's right to pardon is also takeh from him by sta-
tute in certain cases, in favour of public liberty. Thus to
joommit a subject to prison beyond the realm is by the Habeas

: \Conpw, Act made a praemunire which the King cannot par*

; ., So the King's pardon under the great «eal is not pleadable
4v in bar of an impeachment by the* House of Commons (?}.
r . Yet, as remarked by Sir Wm. Biackstone (/), " after the im-
i . tpeachment is solemnly beard and determined, it is not under-
t,Mood that tbaKingfa royal grace is farther restrained or
„ abridged ; Sot after the impeachment and attainder of the six
rebel Jords in 1715, » three of them were from time to time re-
prieved by the Crown, and at length received the benefit of
..,- the King's pardon^

.'., It. scfema agreed that notwithstanding the King's pardon to

.(. .a-simdnist coming into Chinch contrary to the purport of

) 81 Eiiz. c» &; lor to- an officer coining into his office by a cor*

. -rupt bargain contrary to the pmrport of 5 and 6 E. 6. c. 16% ;

may save such clerk or officer from any criminal prosecution

*

■ * A '

(a) Ld. Raym. 214. (d) 31 Car. 2. c. 2. 8. 12.

(*> 2 Hawk. P. €. a 23. i. 41. 5 (<?) See 12 and 13 Wm. 3. c. 2. s. 3.

:, Co. $\i Utah. 190. (/) 4 Com. 399,0. And in Fortes-

(c)5Co, Hep. 51. Cro. Car. 46, 47. cue R. 365, 397, the judges agreed that

Latch. 100. When the pardon dis- the King might pardon a party attainted

charges the costs awarded in these cases. of high treason, by a bill of attainder

See 5 Bac. Ab. 288. 2 Ifcwk. c. 37. in Parliament,
s. 41. 2 Rol. Ab. 304.

in

Ch. VII. Sec. II.] Pardons j Reprieves, 8$c. 93

in respect of the corrupt bargain ; yet, shall it not enable the
cferk to hold the church, nor die officer to retain the office,
because they are absolutely disabled by statute fa).

There are some instances which may be here • mentioned
wkhpffopric^ft in which offenders are entitled to a pardon us
a matter of right; some in which they have a strong equitable
claim to it*

Approvement is where a person indicted for a capital crime
and arraigned far the same, confesses the feet before plea
pleaded, and accuses his accomplices in the same crhne, in
order to obtain his own pardon. In this case he is called an
approver, or praoer, probator (b). This doctrine of approve-
ment has now fallen entirely in disuse (i), but as it Is still in
force in many instances (d), a concise mention of it may not
be objectionable; and as Lord Mansfield has admirably
summed .up the law on this subject, we carinot do better Aim
refer to his expressions for information. . " A person" said his
loydshjp (d)9 " desiring to be an approver, must be one in-
dicted of the offence, and in custody on that indktiherit't (he
rnpsi confess himself guilty of the offence, and desire to accuse
his. accomplices. He must likewise upon oath discover* not
only the . particular .offence for which he is indicted; but all
treasons and felonies which he knows? of 5 and after all this, it
is;in the discretion of the Court, whether they will assign him
a coroner, and admit him to be an approver ornot ? fotf i$ on
his confession it appear, chat he is a principal, 'and tempted
the others, the Court may ajef use and Deject hkn as an approver.
When he is admitted as such it must appear that what 'bthas
discovered is true; and that lie has discovered the whole tr&th;
For this purpose, the coroner pats his appeal into form ^ and
when the prisoner returns into Court, he must repeat his ap-
peal, without any help from the Court, *>r from any by-gtander.
And the law is so. nice, that if he vary in a single riranm-
stance, the whole falls to the. gtwind, and ha is condemned
to be hanged, if he fail in essential** . The same consequences .
follow if he do. not. dispover the whole truth* . And in all
these cases the approver is convicted on his own confession;

(a) Owen, 87. Hetl. 1C4. Go. lit. (rf) Cowp. 935. Se* ftrtbtt, 2 Hftfe,

120. 3 Bulrtr. 90, I. 3 In*. 154. P. C. 226 to 296. Steuodf. PI. Crowo,

(6) 4 Bio. Com* 320, 30. lib. 2. c 52 to c. 58. 3 Inst* 1*9.
(t) 2 Hal. P. C. c. 29. Cowp, 334.

A fur-

9+ Pardons, Reprieves, Sp. [Ch. VII. Sec. II.

A further rigorous circumstance is, that it is necessary to the
approver's own safety, that the jury should believe him, for
if the partners in his crime are not convicted, the approver
himself, is executed."

Various statutes have considerably trenched on this antient
doctrine and practice of approvement. Persons out of prison
who have been guilty of robbery, 4 and 5 Wm. and M. c. 8»
s. 7. ; offences against the coinage acts, 6 and 7 Wm. and M.
ۥ 17* s. 12. 15 G. 2. c 28. s. 8.; burglary, felonious house*
breaking in the day time, horse-stealing, larceny to the value
of five shillings, or more, from any shop, warehouse, coach-
house or stable, 10 and 1 1 W. 8. c 28. s. 5., 5 and 6 Ann,
C 31. s. 4. of destroying fish in private waters, (whether in
custody or not) 5 G. 8. c. 11. s. 2. ; or destroying locks on na-
vigable rivers, 8 G. 2. c. 20. s. 5. ; of using stamps twice
contrary to 12 G. S. c 48. ; or of offences contrary to the star
tutes against smuggling and resisting custom-house officers,
6 G. 1. c 21. a. 36* 8 G. 1. c 18* s. 7., 9 G. 2. c. S3, s. 12. are
entitled to the King's pardon thereof; provided they, being
out of prison, cause the discovery and conviction of two or
more persons guilty of the like crimes. By the statutes
29 G«2. c 80. a, 8, 9* 2 G. *.€.*&. 8. 14., 22 G. % c 68. s. 5.
a person guilty of stealing metals, &c and being out of pri-
son, is entitled to the King's pardon, if he discover two or
more persons who have illegally bought or received stolen me-
tals, &c so that they may be convicted thereof. And it is
usual in the acts which establish and regulate state lotteries to
insert jet clause by which accomplices in forging lottery tickets
are entitled to a pardon on discovering their associates.

At common law where a person indicted for manslaughter
or murder is found by the jttry to have killed the deceased in
his own defence or by misfortune, he is obliged to crave the
King's- pardon, to which, however, he is entitled as a matter
of right (a). It is now usual to avoid expence by directing a
general verdict of acquittal.

There is another case in which offenders are entitled as a
matter of legal right to a pardon ; and that is where the King
promises to pardon them, by special proclamation in the Ga-
zette or otherwise (ft).

(a) 1 East, R C. 221 , 2, 1 Chitty, Crim. (*) Cowp. 334. X Leacb, 1 1 S.
Law, 765, 6. Hawk. b. 2. c. 37. s. 2.

Accom-

Ch.VILSec.IL] Pardons, Reprieves, <$t\ 05

Accomplices who are* to use a technical expression, admitted
te be King's evidence, have no legal claim to a pardon : nor
lias tke magistrate before whom the original examination is
taken, any power to promise them one on condition of their
becoming witnesses (a). In such case, however, and in others
where the party's evidence has been made use of, and he appears
to have acted ingenuously, he has an equitable claim to the
royal mercy (b) ; and it is usually extended to him with refer-
ence to the old doctrine of approvement

Where offenders have by any of these means a legat right to a
pardon, the Court of King's Bench will bail them, in order
toaShrdthem an opportunity of applying for a pardon (e): and
even where offenders have merely an equitable claim under
the circumstances to the royal mercy, that Court will put off
their trials for the same purpose (d).

It may not be amiss briefly to touch upon the antient sup-
posed right of the King to grant suspensions, or dispensations
of the laws, non obstante aliquostahUo in contrarixm, before the
commission of an offence ; or in other words, suffering a person
to commit a breach of the laws with impunity, by rendering
him dispunishable^)- This was a prerogative which almost
all our antient Kings exercised; it was replete with absurdity,
and might be converted to - the most dangerous purposes. It
was always regarded with jealousy, and being carried by the
Judges in the reign of Janes the Second (/), to an extent
which placed the King above tile laws; it was enacted by the
Bill of Rights, 1 Wm. and Mary, seas. & c fi. that no dispen-
sation by nan obstante, of or to any jtotefe, or any part thereof,
shall be allowed, but that the same shall beheld void and of no
effect, except a dispensation be allowed of in such statute."
This provision, we may observe, only relates to dispensations
of statutes, and cannot affect dispensation* df common law
offences. A distinction was formerly drawn between those
offences which were mala m ae^ as for instance, murder, steal-
ing, or perjury, and those which were merely mala prohibitum
or in other words, contrary to Act of Parliament (g). The

(a) Cowp. 336. 1 Leach, 181. Eton. oh. 19. 11 Co. 88. Dyer, 54,

(*) Cowp. 340. 1 Leach, 135. Wil- pL 17.
liams J. Pardon, II. (/) Sir Edward Hale's Case, 8 Show.

(c) Cowp. 334. 1 Leach, IIS. 475. pi. 440. Comb. 81. Clift. 133.

(d) Ibid. (g) Vaagh. 330 to 359.
(«) Finch. Law, 81, 834. Bacon,

power

96 Pardon*, Reprieves, &p. [Ch.VILSec.IL

powter of the Sovereign to dispense with laws relative to of-
fences of the latter description, is annihilated by the sta-
tute ; and it is clear that the King cannot exempt any one
from the future operation of a statute expected to be passed,
but not in actual existence (a). It was always held, that his
Majesty had no legal right to dispense with laws respecting
offences which, by an absurd distinction (A), were termed mala
inse ; or, by previous licence, to render dispunishable offences
which are indictable at common law, as being contrary to
nature or the public good (c). It was, indeed, decided in the
year books, S Hen. 7. 15 pi. 30. that the King's grant to the
Bishop of Salisbury and his successors, having the custody of
a prison, that they should not be liable to be sued for escapes,
was valid. Serjeant Hawkins (d) well observes, that this is a
single instance, and contrary to the general rule*

We have already considered the power of the Crown to
grant exemptions from liability to serve in public offices (*),
and dispensations relative to trade and taxes, &c will be con-
sidered hereafter {/).

By the common law, the King may annex to his bounty a
condition either precedent or subsequent; on the due per*
formance whereof the validity of the pardon will depend (g).
Therefore if a prisoner is pardoned on condition that he find
security for his good behaviour (A), and he accordingly enter
into a recognizance, the law tacitly annexes a condition to
such pardon, that if the recognizance be forfeited, the original
judgment remains in force and may be proceeded upon (i).

The prerogative may also be partially exercised in par-
doning an offender ; so that the King may remit part of
the sentence of the law (A). But it does not seem to be esta-
blished whether be can legally change the mode of punish-
ment by death: that is, substitute a mild for a severe one, by
altering the hanging or burning into beheading, &c Both
Lord Coke (J) and Sir Matthew Hale (w) thought that the

(a) Finch, 235. 1 Dyer, 52. 1 Sid. 401. 2 Hawk. P. C. 394* c. 37. a. 45*
6. Hawk. b. 2. c. 37. s. 38. (*) S«e 5 Wm. 3. c. 13.

(6) See 2 Bof. aod Pal. 374, 5. (i) Moor. pi. 662.

(c) Da*. 75. 5 Co. 35. 12 Co. 29, (*) FortescMe R. 385. 4 fila. Com.

(<*) 2 Hawk. P. C. ch. 37. s. 28. 179. 404, 5.

(«) Ante, ch. 2. s. 3. (0 3 *«»t. 58.

(/) Pott. ch. 10. (*) % Hat P. C. 412.
(g) Co. Lit 274, b. 4 Bla. Coo.

King

Ch.VIF. Sec.II/) Pardons, Reprieves, $c. 97

Kiftg was not possessed of this prerogative. But the contrary
k laid down by other great authorities (a). They contend
that tins prerogative, being founded in mercy and immemo-
ri&Uy exercised by the Crown, is part of the common law.
As pertinently observed by Sir William Blackstone(J) : "how
far this may fall within the King's power of granting condi-
tional pardon (viz. by remitting a severe kind of death on
condition that the criminal submit to a milder) is a matter that
may bear consideration.'' Several instances are also mentioned
by Hume and others, in which this latter prerogative has been
claimed and exercised by the Crown. As however no judicial
determination is to be found, and so great a contrariety of
sentiment has prevailed upon the point, there is much diffi-
culty in coming to a satisfactory conclusion respecting it
The better opinion seems to be, that the King is entitled to
the prerogative in question; and that as he may pardon a
criminal on certain conditions, there is no objection to the
condition being the offender's submission to a less severe
punishment The punishment which the law has inflicted is
certainly altered by this prerogative : but the power of pardon-
ing or punishing is left by the British constitution very gene-
rally with the King.

' The term reprieve is derived from reprendre, to keep back,
and signifies the withdrawing of the sentence for an interval
of time, and operates in delay of execution (c). It is granted
either by the fevor of bis Majesty himself, ot the Judge before
whom the prisoner is tried, on his behalf ; or from the regular
operation of law in. circumstances which render an immediate
execution inconsistent with humanity or justice (d).

This temporary mercy may be extended ex mandate regis,
or from the mere pleasure of the Crown expressed in any way
to the Court by whom the execution is to be awarded (?). The
intention of his Majesty may be signified ore tenus9 by a verbal
message, or by sending his ring in token of his design ; but,
at the present day, the intimation is usually made by the Privy

(o) Foster, 270. Fitt. N. B. 244; Ibid. 412 to 414. Hawk. b. 2. c. 51.

h. 19. Kym. Feed. 9M, 4 Bla. Com. ». 8, 9, 10. Williams's J. Execution

404,5. and Reprieve.

(*) 4Comm. 405. (<*) 1 Cbitty, Crim. Law, 757.

(c) 4 Bla. Com. 394. At to*refirle*ei (<?) S Hale, 412. 1 Ibid. 368. Hawk.

In general, ate 1 Hale, 368 to 370. % b. f . e. 51. a, 8.

h Signet

98

Pardons, Reprieves, §c. [Ch. VIL Sec. 1 1.

Signet or the Master of Requests (a). On this the Judge of
course grants the prisoner a respite, either for a limited time
or during the pleasure of his Majesty (6).

Sdly. Mariner of pardoning,

A pardon may be effectually granted either^by Act of Par*'
liament, or under the great seal, and in general, there seems no
other legal mode of obtaining one(c). It is settled, that iit
pleading a pardon it must be averred, that it was granted un-
der the great seal, if it be not granted by statute (d) ; and that a
coronation pardon, as it is termed, cannot be taken advantage
of, unless it be under that seal(r). And, though the King's
sign manual, or privy seel{f)9 declaring his Majesty** intention
to pardon the prisoner, is a sufficient authority to the Judges
to discharge him(g); yet such sign manual is revocable, and
does not amount to a pardon in legal contemplation (A).

The mode of pardoning at the Assizes or Old Bkiley, if the
Judge think the conviction improper, is, by respiting the exe-
cution of the sentence, and sending a memorial or certificate to
the King, directed to the Secretary of State's office, stating,.
that from favorable circumstances appearing on the trial, he
is induced' to recommend the prisoner to mercy (t). If the
King agree in the propriety of the suggestion, as is usual, a
sign manual issues, signifying his intention to grant either an
absolute or a conditional pardon, and directing the Justices of
gaol delivery to bail the prisoner, in order to appear and plead
the next general pardon that shall come out, which they do
accordingly, taking his recognizance to perform the conditions-
of the pardon, if any are annexed to the indulgence (Ar).

A statute pardon is more beneficial to the prisoner than a

(a) 1 Hale, 369. 2 Hale, 41*.

(*) 1 Cbkty, Clink Law, 757.

(c) See 1 Bos. and P. 199. By a late
statute, convict not to pay the fees.

(cQ Ibid.

(e) Keble, 707.

{/) Under some statutes the King's
sign manual actually carried into exe-
cution and the conditions performed
may amount to a statute pardon, per

Lord C. J. Eyre. 1 B. and Pnl. 200.

( j) 1 Bla. R. 479. * Ibid, 797.

(A) Ibid. 797, 8. 4 Bla. Com. 400.
5 St-Tri. 166, 173. 1 Leach, 115. 15
East, 463. 2 B. and Aid. 277, 8.

(0 DksluSess. 432,3. 4BU.Com.
404, n. 1.

(*) 1 BUk Rep. 479. 1 Leach, 74*
15 East, 468. Williams's J. Pardon 3.
Dick. Sessj 430.

pardon

Ch.VlI.Sec.IL] Pardons, Reprieves, <$p. 99

pardon by the King's charter, under the great seal* The for-
mer, if made by a public act* need not be pleaded, but the
Court must, es officio, notice it (a), which does not hold in the
case of a charter of pardon, and it therefore lies upon the pri-
soner to insist upon and prove k(b\ Neither can he lose the
benefit of die statute pardon by his own laches or negligence*
or by his omission to plead it at the trial (c), as he may of the
King's charter of pardon ; for if the prisoner plead the general
issue) or any other plea, when he might plead the King's char*
ter of pardon, he is considered to have waived it, and cannot
afterwards plead it in his defence (rf). It is, however, clear in
general, that if a prisoner avail himself thereof as soon as by
course of law he may, a pardon may be pleaded either upon
arraignment, in arrest of judgment, or in bar of execution (e).

In order to render the charter valid, it is necessary that it be
correct, and sufficiently full in its statement of facts {/). It is
laid down, as a general rule, that wherever it appears by the
charter that the King was misinformed, or not fully apprized bf
the seriousness of the crime committed by the offender, and of
the extent to which legal proceedings have been carried against
him, the pardon is void, upon a presumption that it was gained
from the King by imposition (g). It has, therefore, been de-
termined, that a pardon of a person attainted of felony is in-
effectual, unless it mention the attainder, or unless it recite the
indictment and conviction, in case he has been convicted by
verdict (A). The statute 13 Rich. 8. st. 2. c. 1 (*').• enacts, that
no pardon for treason, murder, or rape, shall be allowed, un-
less the offence be particularly specified therein ; and particu-

(<i) Foster, 43. (rf) Ibid. 4 Bla. Com. 409. Bac.

(b) See Cro. El. 153. Ab. Pardon, G. (1.)

(c) 1 Wils. 214. 4 Bla. Com. 40*. (e) 4 Bla. Com. 402.

In 1 Wilson Repte. 150, where the pri- (S) The statute 27 Ed*. 3. c. 2. en-

soner being brought up to receive ten* nets, that in every pardon of felony

tenoe on an old conviction, pleaded that which shall be granted at any man's

he was not the same person convicted, suggestion, the said suggestion and the

which on issue joined was found against name of him that made it, shafl be com-

him ; the Court held that he was not prised therein) and if the suggestion be

afterwards at liberty to plead an act of untrue, the charter shall be disallowed,

grace, or general pardon ; observing, (g) ibid. 3 Inst. 238. 4 Bla. Com.

that the defendant had been asked 400. Bac Abr. Pardon, D. 4 Hawk.

«hat he bad to say, fcc and could not p. c. 336 Bk. 2. c. 37. s. 8. Post ch, 1 6.

be asked twiee, and that the plea came Grants,

too late, be-_ having made his election (A) Hawk, ubi supra.

what to rely upon. (q And see 16 Rich. 8. c. 6.

h 2 Jarly

100 Pardons, Reprieves, $c. £Cb.VII. Sec. II.

larly in murder, it shall be expressed whether it was committed
by lying in wait, assault, or malice prepense. This statute is,
it will be observed, confined to cases of treasons, murder, and
rape* With respect to other offences, it seems, that if no legal
proceedings have been commenced against offenders, they will
be protected by a general and indefinite pardon of * all felo-
nies or misdemeanors by them committed,' although the of-
fences of which they have been guilty be not specifically pointed
out, and designated in the charter. Thus, a general pardon
of all misprisions, trespasses, offences, and contempts, in-
cludes a contempt in making a false return, striking in West-
minster Hall, barratry, a premunire, and (it is said) any crime
which is not capital (a). However, no charter of pardon can
be extended beyond its express and clear purport and mean-
ing ; and, therefore, a pardon of all felonies will not include
such offences as are not strictly such in legal contemplation,
as piracies, &c. (A). And if the King, after reciting in his char-
ter an attainder of felony, pardon the execution only, his Ma-
jesty does not thereby pardon the felony itself, or any other
consequence of it, besides the execution (c). Where there is
any doubt the leaning is, however, in favour of the subject, for
whose benefit the pardon was granted (J).

The pardon of a principal before conviction necessarily
eYiures to the benefit of the accessary also, by implication of law;
because, he cannot be arraigned before the conviction of the
principal (e). A pardon to A. and B. of all offences whereof
they are indicted, must be taken severally, from the nature of
the thing; because the offences are several, and consequently
so is the operation of the pardon (f). " The King pardons
his loving and obedient subjects:" this extends to aliens, if
here at the time, though not made denizens (g). The general
rule is that if a felony has its commencement, but not its com-
pletion, before the pardon is granted, the pardon operates in
favor of the prisoner, as it would have done if the felony had
been complete before the pardon. By pardoning the act, the
consequences of it are pardoned also; though such conse-

(a) Lev. 106. Sid. 211. 5 Mod. 5«. don, F.

(A) See 4 Bla. Com. 400. (/) Dyer, 34. Moore, 164. Lord

(0 6 Co. R. 13. Kaym. 1«03.

(d) 4 Bit. Com. 400, 1 . (g) Per Hob. 87 1 .

(«) Cro. El. 30, 1. 5 Bac. Ab. Par-

quences

Ch. VIL Sec. IL] s Pardons, Reprieves, $c. 101

quences may not have occurred at the time of the pardon: as in
the case of pardoning homicide, where the death, occasioned
by the wound, transpired after the pardon was granted («). It
was however held that if a man gave a blow (which, unless
death ensued, was not a capital offence, but merely a misde-
meanor by the common law) and a pardon was granted of all
• misdemeanors, but not of murder, and the party wounded
afterwards died, the felony is not pardoned (b).

Formerly by the statute 10 Ed. S. st l.cS. no pardon of
felony by the King's charter could be allowed or was effectual
without a writ of allowance, testifying that the prisoner had
found six sureties before the Sheriff and Coroners of the
county (c). This statute of Ed. S. did not extend to pardons
of treason (d); and it being found that its operation bore too
harshly upon offenders, it was at length entirely repealed by
the statute 5 and 6 Wm. 3. c. 13. That statute, however, pro-
vides, sect 2, " that if any charter of pardon be pleaded by
any person for any felony, the Justices before whom such
pardon shall be pleaded, may, at their discretion^ remand or
commit such person to prison, there to remain until he or she
shall enter into a recognizance, with two sufficient sureties, for
his or her being of the good behaviour for any time not ex-
ceeding seven years. Provided, that if any such charter of
pardon be pleaded by a feme covert or infant, such feme
covert or infant may find two sufficient sureties, who shall
enter into a recognizance for him or her being of the good
behaviour as is aforesaid."

The Court in exercising this their discretion, will not
require the pardoned offender to find sureties according to the
statute, unless it appear that he is a person of ill fame, and one
whose general conduct has been suspicious (e\ and sureties
have been rarely required {/ ).

The mode of granting a reprieve has been already men-
tioned (g).

(a) Plowd. 40L Hal. P. C. 426. (e) See Rex v. Chetwynd, 9 State
Dyer, 99. pi. 65. Foster, 64. Tri. 537. Stra. 1203.

(b) Ibid. (/) As to the manner of pleading a

(c) See Plowd. 502. Sid. 41. Salk. pardon, see further Bac Ab. title Par-
499. 4 Bla. Com. 402. don, G. 1 Chitty, Crim. Law, 775.

(rf) Cro. El. 814. Noy, 31. (g) Ante, 97.

The

102 Pardons, Reprieves, #c. [Ch.VIL Sec.L

The law of transportation is founded on several statutes (a)
which provide generally, that the transportation shall have the
effect of a pardon under the great seal, as to the offence for
which the offender was transported. By the word transpor-
tation, in the statute 8 G. S. c 15. is meant not merely the con-
veying the felon to the place of transportation, but his being
so conveyed and retnaining there during the term for which
he is ordered to be transported; and therefore a felon at-
tainted is not by that statute restored to his civil rights till
after the expiration of the term for which he was ordered to
be so transported (£).

kthly. Effect of a Pardon.

The King's pardon, if general in its purport and sufficient in
other respects, obliterates every stain which the law attached
to the offender. Generally speaking, it puts him in the
same situation as that in which he stood before he committed
the pardoned offence; and frees him from the penalties and
forfeitures to which the law subjected his person and pro-
perty (c). Though a pardon cannot wash away those doubts
with which the evidence of one who has committed a
serious offence will be received; yet in point of law, a legal
pardon impliedly removes the stigma and restores a man to
credit, so as to enable him to be a witness (d); and it so far
makes him a new man as to entitle him, according to some of
our old books, to bring an action against any one who scan-
dalizes him in respect of the crime pardoned (e). '

When the offender's property and civil rights have onc^
vested in the King they cannot be restored to the offender,
nor are they divested from his Majesty by a mere pardon,
without a clause of restitution (f). It seems however that a

(a) 4 G. I.e. 11. 6 G. 1. c. 23. 8 Cra Ca*. 115.
O. 3. c. 15. 30 G. 3. c. 47. See (*) See Bac. Ab. Pardon, H. Hob.

S B. and Aid. 258. 67,81,2.

(4) Ibid. (/) 1 Saund. 362, 3. 1 Lev. 120.

(c) 4 Bla. Com. 402. Bac. Ab. Par- Bac. Ab. Pardon, H. 2 Mod. 53. 3

don, H. Mod. 104. 2 B. and Aid. 277, 8, per

(rf) 1 Ventr. 349. 2 Hal. P. C. 278, Abbott, C J.
4 State Tr. 082. Gully'i Case, 1 Leach.

clause

Ch. VII. Sec. UV] Gaols. 10S

clause of release of all judgments and executions in a general
pardon, extends to debts due to the King by forfeiture: and
extinguishes or merges the debt in the hands of the debtor (a),
A charter of pardon after attainder is not sufficient to restore
or purify the corrupted blood of the attainted offender (i), and
therefore though he may after such pardon purchase and hold
lands, yet his descendants who were in esse at the time of the*
attainder, cannot inherit them; nor can he himself inherit as
descendant of another (c). The King's charter is however
sufficient to restore the blood as to all future descendants :
consequently a son born after such pardon may inherit (J),
unless there be in existence an elder brother who was born
before the attainder, and who might have inherited had not
the attainder taken place; in which case the younger bro-
ther cannot inherit, and the land will escheat pro defectu
Aaredis (*).

SECT. IIL

As to Gaols.

PbisoKS being places of a public description, and connected
with the execution of justice, are in general the property of
the King (/*)• And it seems that by the common law his Ma-
jesty is impliedly their governor; though by various sta-
tutes^), the custody of gaols, except such as are the legal
property or franchise of a subject, is vested in the sheriffs of
the different counties (A). His Majesty cannot, therefore, now
grant the custody of prisoners to private persons (*)• The
formation of a new prison can be legally effected only by the
authority of Parliament (£).

(a) 1 Saund. 362,3. 1 Lev. 120. margin, note a. 8 Term R. 176.

Bac. Ab. Pardon, H. 2 Mod. 53. 3 (g) 14 Ed. 3. St. 1. c 10. 5H.4.

Ibid. 104. Per C. J. Abbott, 2 B. and c 10. 19 Hen. 7. c. 10. 11 and 12

Aid. 277, 8. Wo. 3. c. 19. s. 3. 5 Ann. c 9.

(6) 4 Bla. Com. 402. (A) See Ibid, Rol. Ab. 806. Show.

(c) Co. Lit 8, a. Hal. P. C. 358. R. 162.

(</) Ibid. 9 Bla. Com. 254. 4 Ibid. (i) And 345. 4 Co. 34, a. 9 Co.

402. 1 19. Cro. El. 829, 30.

(*) Ibid. 1 Bat. *. C. 358. (ft) 2 Inst. 705.

(/) 2 Inst 10* Bac; Ab. Gaol, B.

SECT.

1 04 Proclamations. £Ch. V 1 1. Sec. IV.

SECT. IV.

Of Bayed Proclamations.
1st In general ; and when they are legal.

Royal proclamations seem to be extremely antient ; and, it
is most probable, were originally adopted for the purpose of
giving additional weight and dignity to the laws. Proclama-
tions have been frequently made the tools of tyranny and op-
pression ; and by a statute of Henry the 8th (a), were in sub-
stance set on the same footing as Acts of Parliament (A). This
statute fortunately existed a very short period (c ). And it is
clear that by the constitution of the country, this prerogative,
respecting proclamations, merely enables the King as executive
magistrate to command and enforce the performance by his
subjects of existing laws, and to make or alter regulations
over which 'his Majesty has a peculiar jurisdiction (d): and
does not entitle him to break through those fundamental prin-
ciples on which the legislative portion of the government is
founded, by commanding the observance of matters not sanc-
tioned by Parliament. In this point of view, and if thus re-
stricted, the prerogative in question is highly reasonable, and
of public advantage ; because, though the making of laws is
entirely the work of a distinct part, the legislative branch of
the sovereign power, yet the manner, time, and circumstances
of putting those laws in execution, must frequently be left to '
the discretion of the executive magistrate (<?). In such case
the royal pleasure is usually expressed by a proclamation.

But the people are not to be commanded to observe the laws
by any other public mandate than that of his Majesty : and it
is an offence punishable by the common law, for a subject to
assume and exercise the power of issuing a public proclama-
tion ; even it seems though it respect a private matter wholly

(«) 31 Hen. 8. c. 8. (c) 1 Ed. 6. c. 12. s. 5. See 4 Hume

(A) There was a clause in the statute, Hist. 196, 7. 6 Ibid. 52. .

that such proclamation should sot be (rf) See 1 Bla. Com. 270. 5 Bac.

prejudicial to any person's inheritances, Ab. 549, title Prerogative, D. 8. fa-

offices, liberties, goods, chattels, or stances post. c. 10, as to commerce,

life; and see N. Bacon's Hist. 2 part, fcc Chitty Law Nat. 259, Ice.

fcl. *!$• (*) 1 Bla. Com. 270.

uncon-

Ch.Vn.Sec.lV.] Proclamations. 103

unconnected with state affairs (a). This is strongly illustrated
by the case of Sir Edward Knightly (&), executor of Sir Wil-
liam Spencer, who was fined and imprisoned for making pro-
clamation in certain market towns, publicly and without any
authority, that the creditors of the deceased should come in
by a certain day and prove their debts. However a subject
as a mayor of a town, &c. may by custom, ration? prixrilegii,
possess this right (c).

The King may, by proclamation, call or dissolve Parlia-
ment, declare war or peace, promulgate blockades, authorize
the Lords of the Admiralty to grant letters of marque and re-
prisals (d) ; appoint fasts, and days of thanksgiving and humi-
liation ; enjoin the reading of a form of prayer in all churches
and chapels within his Majesty's dominions (e); or legitimate
foreign coin, and make it current money of this kingdom, ac-
cording to the value imposed by such proclamation (f). So,
as the King may prohibit any of his subjects from leaving the
kingdom (g), a proclamation forbidding this in general for
certain time, by laying an embargo upon all shipping in time
of war, &c. and in case of necessity, is obligatory upon, and
must be attended to by his Majesty's subjects (h). But, as the
King cannot restrain trade where the laws do not, a proclama-
tion to lay an embargo in time of peace upon all vessels laden
with wheat (though in the time of a public scarcity), being
contrary to law(f), and particularly to the statute 22 Car. 2.
c. 13. the advisers of such a proclamation, and all persons
acting under it, found it necessary to be indemnified by a spe-
cial Act of Parliament (Ar). So where an act was passed, by
which foreigners were permitted to trade with London, and
Henry the Fourth, by proclamation, prohibited the execution
of the Act, and ordered that it should be suspended, usque ad
proximum parliamentum, this was held to be against law(/).

(a) 12 Co. 75. Bro. Ab. title Pro- Co. Lit. 207. Hal. P. C. 16!), 192,210.

clamatton, pi. 1. Crom. Jur. 41. 5 Da v. 21. Post. ch. 10.

Term R. 442. (g) See ante, ch. 2. s. 3.

(*) Bro. Ab. Proclamation, pi. 10. (A) 4 Mod. 177, 179. See post. ch.

(e) 12 Co. Bro. Ab. Crom. Jur. wAi 10.

smprm. Wood's Inst. 20. (i) See post: ch. 10. 2 Inst. 63.

(d) 5 Bac. Ab.55, title Prerogative, (i) 7 Geo. 3. c.7.; see 1 Bla. Com.

P. 8. 270, 271. Post ch.' 10.

(*) Comp. Iocumb. 354. (/) 12 Co. 75.

(/) See 3 Inst 16*. 5Co.tl4,b.

A pro-

106 Proclamations. [Ch.VII. Sec. IV,

A proclamation for disarming Papists is binding, being only in
execution of what the legislature has first ordained; but a pro-
clamation for allowing arms to Papists, or for disarming any
Protestant subjects, will not bind ; because the first would be
to assume a dispensing power, the latter a legislative one, to
the vesting of either of which in any single person, the laws of
England are absolutely strangers (a).

A proclamation is not obligatory or effective, where it re-*
strains his Majesty's subjects in matters on which the laws are
silent, though the observance of such matters might be ad-
vantageous to the public (ft); and, therefore, it has been deter-
mined that his Majesty cannot, by proclamation or otherwise,
prohibit the erection of new buildings in and about London^ or
forbid the making of starch from wheat (c). And the case we
have just mentioned, respecting the embargo on wheat, was
determined on the same principle*

There are indeed instances to be found 'of persons who have
been sentenced in the Star-chamber upon proclamations against
the increase of buildings ; and in particular one in Hobarfs
Reports (</), where a person was fined by that Court for building
without brick, though upon an old foundation ; and it is there
laid down that such buildings had an ill effect from the danger
of fire, consumption of timber, and difficulty of feeding, clean-
sing, and governing the city; «nd that proclamations are just
when made pro bono publico. But the vague doctrine advanced
in this case is so contradictory to every principle and judicial
determination on the subject, that we may pass it over with a
conviction that it is unfounded, more especially as it was pro-
nounced by an unconstitutional and prejudiced tribunal (*)•

2dly. Proclamations) haw made.

A proclamation must be under the great seal, and, if denied,
is to be tried by the record thereof (/ ). It is of course neces-
sary that it be published, in order that the people may be ap-

(a) 1 Bltu Com. 271. («) As to the illegal conduct of the

(b) 12 East, 5296. Chitty L. Nat. Star-chamber, with tespect to Procla-
259. mattons, see Lord Clarendon's Hist, of

(c) 12 Co. R. 74. Repub. b. 1 and 3.

(rf) Armsted's Case, Hob. 251. (/) Cro. Car. !80. Rol. K. 17«.

prized

Ch.VIIL] Fountain of Honours, $c. 107

prized of its existence, and may be enabled to perform the
injunctions it contains.

In the absence of any express authorities on the point, it
should seem that if the proclamation be under the great seal,
it need not be made by any particular class of individuals, or
in particular manner or place : and that it would suffice if it
were made by any one, under the King's authority, in the
market-place or public streets of each large town. It always
appears in the Gazette.

Sdly. Consequences of disobedience to a Proclamation*

Where the law gives a right, it tacitly affords a remedy for
the infraction of it: it would be useless to possess a right
unless means were provided to render it efficacious. There
can therefore be no doubt that disobedience to a legal procla-
mation is punishable by finfe and imprisonment; and though
the matter prohibited be an offence by law before the issuing
of the proclamation, yet the disobeying H, when legal, is,
of itself, an offence for which the party is liable to be
punished (a).

chap. vnr.

Of the King as the Fountain x^f Honours, Dignities,
Privileges, and Franchises; and the nature of them.

"It is impossible," says Sir Wm. Blackstone, "that a govern-
ment can be maintained without a due subordination of rank,
that the people may know and distinguish such as are set over
them, in order to yield them their due respect and obedience;
and also that the officers themselves being encouraged by
emulation and the hopes of superiority, may the better dis-
charge their functions : and the law supposes, that no one can
be so good a judge of their several merits and services as the
King himself who employs them (6). The Crown alone there-
to 18 Co. 74. See Hob. 251. origin of dignities, 3 Cruise Dig. 111.
(A) 1 Bis. Com. 271, 396. As to the Seld. Titles of Honour. - >

fpre

108 Fountain of Honours, $c. [Ch.VlII.

fore can create and confer dignities and honours. The King is
not only the fountain ; but the parent of them. Nor can even
an ordinance of the House of Lords confer peerage (a).

The titles of nobility now in use are dukes, marquesses,
earls, viscounts and barons. These titles were introduced into
this country by its Kings at different periods (b) ; and conse-
quently the degrees of nobility are not of equal antiquity. The
most exalted in point of rank are not the oldest. Thus the
titles of earl and baron, which were the only titles of nobility
used before the reign of Edward the 3d (c), seem to have
existed before the Norman Conquest; at least traces of their
existence before that event have been developed; though it
appears certain that the exact nature of these titles and the
duties which the possessors of them were bound to observe
were more clearly ascertained and fixed by the Conqueror (d).
The dignity of a duke was first conferred on a subject in this
country by Edward S. who created his son the Black Prince,
Duke of Cornwall (e). This was done with great solemnity in
full Parliament at Westminster, March 17, 1337. Many per-
sons were afterwards raised to the like honour. However in
the reign of Queen Elizabeth, 1572, the whole order became
utterly extinct ; but it was revived about 50 years afterwards
by her successor, who was remarkably prodigal of honours, in
the person of George Villiers, duke of Buckingham. The
title of Marquis was afterwards introduced into England by
Richard the 2nd {f) ; who conferred it on Robert de Vere,
Earl of Oxford : and Henry the 6th introduced that of vis-
count, by creating John Beaumont a peer, by the name of
Viscount Beaumont (g).

Various offices and duties were formerly attached to most of
these titles (h) ; and there can be no doubt that they were ori-
ginally territorial, that is, annexed to lands, honours, castles,
manors, and the like, the proprietors and possessors of which
were (in right of those estates) allowed to be peers of the

(a) Win. Jooes, 104. 1 Ld. Raym. (e) Hen. Hist. Engl. 8 vol. 135, 8va

16. ed.

(A) See 3 Cruise Dig. 176 to 184. 1 (/) 2 Inst 5. Rol. Pari. 3 vol. page

Bla. Com. 396, fcc. 209.

(c) 1 Li Baym. 12. (g) Seld. Tit of Hon. p. 2. cb. 5. s.

(rf) See Cruise Dig. and Bla. Com. 31. 2 Inst. 5.

h* supra. (A) See 3 Cruise Dig. 172, 173.

1 Ld. Raym. 12, 13.

8 realm,

Ch. VIII.] Fountain qf Honours, $c.

109

realm, and Were summoned to Parliament to do suit and ser-
vice to their sovereign : and when the land was alienated, the
dignity passed with it as appendant. Thus the bishops still
sit in the House of Lords in right of succession to certain
antient baronies annexed, or supposed to be annexed, to their
episcopal lands (a): and thus in 11 Hen. 6. the possession of
the castle of Arundel was adjudged to confer an earldom on
its possessor (£). But afterwards when alienations grew to be
frequent, the dignity of peerage was confined to the lineage of
the party ennobled, and instead of being territorial, became per-
sonal. Actual proof of a tenure by barony became no longer
necessary to constitute a lord of Parliament ; but the record of
the writ of summons to him, or his ancestors, was admitted
as a sufficient evidence of the tenure (c). At the present day
therefore, peers may be and frequently are created by the
King, though no office or property is annexed to them. It is
indeed immaterial whether the place from whence a peer takes
his title really existed (d).

The creation of peers is effected either, 1, by writ, or 2, by
patent, (usually by the latter mode) : for those who claim by
prescription must suppose either a writ or patent made to their
ancestors ; though by length of time it is lost (e).

1. The creation by writ (which is more antient than the cre-
ation by patent) (f)9 is a summons to attend the house of peers
by the style and title of that barony which the King is pleased
to confer (g) : but the writ does not take effect, and the party
is not ennobled until he has taken his seat in Parliament by
virtue of his Majesty's, summons (A). Some are of opinion
that there must be at least two writs of summons and a sitting
in distinct Parliaments to evidence an hereditary barony (i).

The King may in his writ of summons restrain the mode in
which the dignity is to descend, to males exclusive of fe-

(a) Glao. I. 7. c. 1.

(4) Seld. Tit of Hon. b. 2. o. 9. a. 5.

(c) 1 Bla. Com. 399, 400. 3 Cruis.
Dtf. 174, 185, &c. 219 Rot. Pari.
4 vol 44!; 5 vol. 148. 1 Dogd. Bar.
322, 323, 361, 363, 365. Collins, 115.
61, 113, 116, 287. Lords' Journ. 1 vol.
316; 2 vol.345.

(</) Ibid. Id. Raym. 13.

(e) 1 Bla. Com. 400. At to a digni-
ty by prescription, see 1 Buhtr. 196.

(/) Co. Lit. 16; b.

(g) 1 Bla. Com. 400.

(A) 12 Co. Rep. 78. Co. Lit. 16, b.
3 Cruise Dig. 194. 1 Bla. Com, 400.
The sitting in Parliament must be
proved by the records of Parliament.
Co. Lit. t6, b. 1 Lord Raym. 14.
3 Cruise Dig. 195.

(•) 1 Bla. Com. 400/ Whitelock of
Pari. q. T1+; '

. males;

110 Fountain of Honours, 8gc. [Ch.VIIL

males (a) ; yet it seems clear on principle, and has been ac-
cordingly determined, that if no such restraint be made* the
dignity created by the sitting in pursuance of the summons,
descends to the lineal heirs male and female, of the person first
summoned (ft). Lord Coke, indeed, states that "if one be
generally called by writ to the Parliament, he hath a fee-simple
in the barony, without any words of inheritance (c)," but this is
clearly a mistake; for the person summoned has not a fee-sim-
ple, but an estate tail general, in the dignity. If he were tenant
in fee-simple, the dignity would descend to the heirs general,
lineal or collateral, of the person last seised, whereas a dig-
nity of this kind is only inheritable by such of his heirs as are
lineally descended from the person first summoned to Parlia-
ment, and not to any other of bis heirs (d)" Lord Coke him-
self appears to have corrected his mistake in the same page by
saying,. " and thereby his blood is ennobled to him and his
heirs lineal (e)." It is frequent to call up the eldest son of a
Peer to the House of Lords by writ of summons, in the name
of his father's barony: because in that case there is no
danger of his children losing the nobility in case he never
takes his seat, for they will succeed to their grandfather (/).
It has been often determined that a writ of summons of this
kind to the eldest son of a nobleman, creates a dignity in such
son, and renders it hereditary in his blood (g). But it must be
remembered that where the summons to Parliament is by the
title of the father's barony, the son summoned has no other
title in the barony than the father has; for the effect of the
writ of summons in this case is merely to accelerate and
anticipate the son's succession, and therefore in a modern
case, where the father's barony was limited by patent to him
and thq heirs male of his body, and his eldest son was called up
to the House of Lords by writ, with the title of this barony, it
was held that the writ did not create a fee or a general estate *
tail, so as to make a female capable of inheriting the title, but

(a) 1 Inst. 9, b. 7 Co. 33, b. 944, 254.

(ft) Lords' Joaro. 19 vol. 699.; 15 voL (e) And see 1 Wcoddn. 37, Dote y.

442, 458, 552; 17 *ol- 81, 91. 3 Crntse 1 Bk. Com. 460, note 6. Christian's

Dif . 909. sect. 64. Collins' Append. ad.

No. 7. y) i Bla. Com. 400.

(c) Co. lit. 1 6, b. (g) See Lords' Jonrn. 95 vol 1 1, 99,

(<Q 1 Inst 15, b. 3 Cruis. Dig. 2*3, 112, 130. 3 Cruise Dig. 907, &c.

7 that

Cb. VIIL"! Fountain of Honours, fyc.

Ill

that upon the father's death the two title* unite or become one
and the same (a).

Tie creation by patent under the greet seal, w a royal grant
to a subject of any dignity and degree of peerage (6). Antiently
a certain corporeal ceremony or investiture was considered
necessary to perfect a dignity created by patent, but it has long
suHse been settled otherwise (c) ; and that the creation of the
dignity by letters patent is complete, although the grantee die
before he has taken his seat (d). The patent must contain apt
Worcb to direct the inheritance in the dignity conferred, eke it
will enure to the grantee lor life only, and his descendants will
have no claim to it (*)• We hare just seen that the King may
restrain the descent of a dignity, and his Majesty may also
make either a man or a woman noble for life, but not for years,
because then it might go to executors or administrators (/)•
A person may also have a qualified fee in a dignity (g)9 nor
can there be any objection to its being limited in remainder (A).

Where a person who has a dignity, marries, his wife becomes
entitled to the same during her life, unless she afterwards
many a commoner; for as she acquired, so she loses, her
dignity by marriage. But where a woman who has a dignity
in her own right marries a commoner, she still retains her
dignity (t ), though she communicates no rank or title to her
husband (&); and it seems thdthe is not entitled to be tenant
by the curtesy of his deceased wife's title, though this latter
point is certainly far from being clear (/)• It is laid down by
great authority, that if a Duchess by marriage, marry a Baron,
she continues a Duchess still; for all the nobility are pares,

(a) Case of the claim to the barony
of - Sydney of Pennant, disallowed.
IfenuProc* 17 Jane, 1789$ 5 Bio. Cns!
in Pari. 509. 3 Cruise Dig. 31 1 , 31 2.

(6) S Com. Dig. 215. 1 Bla. Com.
400.

(c) 9 Cruise Dig. 218.

(it) 1 Inst 16, b. 12 Rep. 71. Lords9
Journ. 21 voL 682. 9 Cruise Dig. 219.
1 LcL Raym. 10, 14.
> (#) Co. lit. 16, b. 1 Bla. Com. 401.
3 Cruise Dig. 218. Seel Ld. Raym.
16.

(/) 1 Inst 27, a. 9 Cruise Dig. 222.

It has been supposed that a man may
be made noble for the life of another.
50 Hen. 6, 29; by Dauby. Co. Lit
1 6, b. note 6.

(g) 1 Inst 27, a. 3 Cruise Dig. 222.

(A) 3 Cruise Dig. 226. . As to entail-
ing a dignity, 3 Cruise 223. s. 101, fcc.

(i) 1 Inst 16, b. Dyer, 49. Nobi-
lity gained by marriage is to be tried
by jury. 6 Co. 53, a. Ld. Raym* 14.

(*) Hargr. Co. Lit 326, b.

(/) Co. Lit 29, b. note 1. 3 Cruise,
227. sect 10C to 113.

and

112 Fountain of Honours, $c, [Ch, VIII*

and therefore it is no degradation (a). The contrary has,
however, been asserted (ft) ; and on principle the latter opinion
seems correct, for though the nobility are, generally speaking,
parei, yet there ore doubtless different gradations of rank
among them; nor does there seem any reason why the de-
gradation to the husband's degree should not take place : and
Ma*. Cruise observes (c\ that at the coronation of his present
Majesty, the Bnchess Dowager of Leeds, then the wife of Lord
Portmore, claimed to walk as a Duchess, but it was refused.

The King may legally grant to a Scotch Peer a patent of
peerage of Great Britain, with all the privileges incident
thereto, which was determined by the House of Lords after
the unanimous opinion of the Judges to the same effect, in
the case of- the Duke of Hamilton, who claimed to sit and
was accordingly held entitled to sit, as Duke of Brandon [d),
Ori the other hand, an English Peer may take a Scotch peer-
age by descent (A

*Ify the common law, his Majesty might give nny nobleman
precedence and place in public assemblies, even before others
who enjoyed a mure antient dignity of the same or a higher,
degree of nobility (/); but this latter prerogative is restrained
(g)by the statute 31 Hen. 8. c. 10. and 1 W. & M. sess. 1. c.,
Si", whichsetde the place and precedence of all the nobility .
arid great officers of state (A). The seventh section of the 31 .
Hen; 8. enacts, " that all Dukes not aforementioned, Mar-,
qrfessesi Earls, Viscounts, and Barons, not having any of the
oflceS therein mentioned, shall sit and be placed after their
arfticnty,"as hat) been accustomed." As however this statute
do«s not extend to Ireland (i), the King still retains this
prerogative in that country, without any legal restrictions,
except it be by virtue of the 4th article of the 39 and *0 G. S.
c 67. the Irish Act of Union, which enacts " that as often as'
three- of the Peerages of Ireland, existing at the time of the

(a) Yrai BooIk, 23 Hen. 6, 52. Co. (/> 4 but. 361, 363. Baste], 31

Lit. IS, b. 1 Bit Com. 401, 8. . Hod. 8. c. 10.

(4). O-cn, 82. Btndl. 31, cited Co. (gj 1 Ld. Bajm. 16.

Lit. 16, b. note 6.

(e) 9 V«I.Ut>sm

{•I) 1 BUu Com. 97, sow. Cbiu
•d. Sac Li.rdV Juini.

(r) Ibid. Bla. Cum. (i) Sm ante, «b, 3.

Ch.VIII.] Fountain of Honours, <$c. IIS

Union, become extinct, the King may create one Irish Peer;
and when the Peers of Ireland are reduced to 100 by extinc-
tion or otherwise, exclusive of those who shall hold *ty
Peerage of Great Britain, subsisting at the time of the
Union, of created of the United Kingdom since the Union*
the King may then create one Peer of Ireland for every
Peerage that becomes extinct $ or as often as any one of them
is created a Peer of the United Kingdom; so that the King
may always keep up the number of 100 Irish Peers, over ana
above ttase who have an hereditary seat in the' House of
Lords." The prerogative as to the number of Engttik Pesra
does not appear to be thus limited. His Majesty may, by his
prerogative, grant rank and precedence to a foreign Prince
who intermarries into the royal family, before the greatest
officers of state and Peers of the, realm, as was done on the
marriage of the late Princess Charlotte of Wales (a).

We have already considered that the King has an interest
in his subjects and aright to command their services, and con*
sequently they carmpt with impunity refuse to accept from his
Majesty even a mere dignity or honour. So nobility when once
acquired cannot be lost or transferred by any other power but
that of Parliament, except by death or attainder (6). Hence it
appears to be now settled, that a Peer cannot be degraded on
account of poverty, or for other reasons, even by the King(c):
and though formerly held otherwise, it is now settled that a
dignity or title of honour can neither be effectually aliened by
the person in possession of it, though the. King's- consent is
obtained (d), or be surrendered to bis Majesty (t); but in both

(«) Tuesday's Gazette, Whitehall, Canterbury, the Lord Chancellor, and

May 8, 1816.—*' His royal highness all other great officers, and befere the

the Prince Regent has been pleased in Dukes (other than and except the Dukes

the name and on the behalf of His Ma- of the blood royal), and all other Peers

jesty, to declare and ordain that his of the realm."

Serene Highness Leopold George Fro (a) 7 Rep. 33. 1 Bla. GeoweOS.

dcrick, Duke of Saxe, Margrave of Me- (c) Ibid. 12 Mod. 5& IS Co. Hep.

■sseo, Landgrave of Thuringuen, Prince 107; see 1 Ld. Raym. 16.

of Cobourg of Saalfleld, Consort of her (a*) Lords' Joorn. vol. 4, page 150.

Royal Highness the Princess Charlotte 3 Cruis. Dig. 330. s. 114. to s. 118.

Augusta, shall take, hold, and enjoy, (*) Lords' Joora. 4 vol. 150 ; 13 vol.

storing the tern of his natural life, in 853. Show. Cas. hi Pari. 1 ; Lord Pur-

nil ass—hues or meetings whatsoever, beck's Case, Coll 10. 3 Cruise Dig.
the preoenaacfl and rank fallowing; that

these

b to say, before the Lord Archbishop of

114 Foutttain qf^ Honqitrs, $c. , [Ch. Yllh

these ^ases thq heir has a claim, notwithstanding the aliena-
tion, or surrender. Jt is laid down that if a Baron3 constituted

)j4 writ of ^ummons, take a grant by patent of the seine harQjry,
lis n^erges or determines his barony by writ (a). . But Mr-
Hargrove remarks, (£)» . that the doctrine of extinguishing a
barony , by \yr it, by acceptance of a patent barony, seems q^iesp
tiona\>le^ for it supposes, a right to surrender the barony by
writ, which, as we \i^ve seen, cannot be legally done. Indeed
it, was, never denied that the. barony by writ w*s not exUn-
t gushed by the patent barony, in capes where the old barony
lyr {writ.w:a$% suspended, by the party entitled to it being out of
possession or otherwise (c).. And in the case of th$ barony of
I^rd/WjUloughby de Brpke, it was resolved by thp House qf
Lords, that the grant of a new barony of Willoughby de Broke
tq.Sir. F. GrevJUe, by letters patent, to him and his heirs male,
(he being in possession of the antient barony by writ) did not
destroy such antient barony. But the. same continued and
descended to his sister and sple heir, and so from her to Sir
fy. Verney ; who was seated in thte House pf Lords according
to the date of the antient. barony.

It is also settled| that if a person possessed of it barony by
writy which is, consequently, descendible to his heir genera]? be
created an earl to him and the heirs male pf his body, the earl-
dom, does not attract the barony, and they are separate au,d
distinct from each other (<2), and the barony will descend to the
hehr general, although the JWldom become extinct (e).

. ^Where a dignity or title of honour is descendible to heirs
general, and the person possessed of it dies, leaving only
daughters, or sisters, . or coheirs, it falls into abeyance, or ra-
ther becomes vested in the Crown, during the continuance of
the coheirship; for a dignity is entire and not divisible, and
no one coheir can in particular sustain a claim to it, and of
course they cannot claim it together (f). But the dignity in
abeyance is not in the power and disposal of the King abso-

(a) Hat. M. & Co. £it. 1*, b. Lord*' Joura. 4 vol. 149.
m*c(2). . . («) Collins, 286. 3 Crime Dig. 237.

(4) Ibid, . . , tit, Dignity, sect 131.

(0 Ibid. 12 Rep. L Coll. 122, (/) Lords' Journ. 3 »oL 535. Coflins,

1*3. •.'.., w, . , 175, 3 Oniis* Dig. 245, 248. sect. t49*

{d) Collins, 195. 1 Inst 15, b.notaS. fcfe.Jbjd, £66^7* petC. J. Eyre.

lately,

Ch. VIII.] Fountain of Honours, $c. 115

lutely, forliis Majesty cannot, by law, extinguish of dispose of
h to a mere stranger; and therefore, on the termination of the
abeyance, where there remains only one heir, stich sole heir
becomes entitled to the dignity or title, not as a favour, hut as
k matter of legal right (a). It is, however, in the power of
the Crown to terminate the abeyance or suspension of the' dig-
nify, by nominating any one of the coheirs to it Such no-
mination operates, not as a new creation, but as a revival of the
antient dignity, for the nominee becomes entitled to prece-
dence according to the date of the dignity (i). The abeyance
terminates, as a matter of qourse, whenever there remkin^ by
the death of some of the coheirs, but one hfeir(<?), but \h&
attainder of one of two coheirs does ndt determine t!he' abey-
ance (&).

* Where the King terminates the abeyance of a digrtity irt
favour of a commoner, he issues a summons to him by the
name of the barony whidi was in abeyance; as, in the cases of
Lord Le Despencer, and Lord Botetourt But where the per-'
son, in whose favour the abeyance is terminated, is already a '
peer, and has a higher dignity, there the King makes a decla-
ration, unddr the great seal, Confirming the barony to hirfi ;
and in the case of a female, the abeyance is felso terminated by
a declaration. Formerly it was the practice, to confirm the ba-
rony to the person, and his or her he$r$, but now it is only to
the heirs of his or her body (*). ' ' ' T ' '

Where an abeyance is terminated by b writ of summons, <fifc %
ferent opinions have been entertained respecting the extent of
the operation of such a writ Some eminent persons are said '
to have held, that where a barony is in abeyance between the
descendants of two coheirs, and the King issues his writ of
summons to one of the heirs of the body of one of the two co-"*
heirs, the abeyance is thereby terminated,1 'riot only as to the
person summoned, and the heirs of his or her body, but also as
to all the heirs of the body of such dri^iiiaf coheir; but the

(a) S Cruise Dig. 254, 5, &c. See C J. Eyre. 3 Cruise Dig. 267", 8.

Skin. R. 432, 431. Du$d. B*r. 2 vol. (e) 3 Cruise, 254. •

363. Collins, 412; 322. Lords' Journ. (cf) Stapleton's Case, Printed Cases,

15 toL 634, 643, 671; 21 vol. 466, Dom. Proc. 1794, 5; cited 3 Cruise

339. Dig. 261. s. 172; 1 ed.

(*) 3 Cruise Dig. 249. LwdV Jonrn. (*) 3 Cruiie Dig. 250, 252.
30 toL 403, 561, 572; 2 i«L 347 j per

i 2 better*

116 Fountain ofBonoilrs, $c. £CU.V1II.

. better opinion seems to be, that die effect of a writ of summon*
in a case of this- kind, is only to terminate the abeyance aa to
the. person summoned, and the heirs of his or her body;' and
that, upon failure of heirs of the body of the person so sum-
moned, the barony will again fall into abeyance, between the
remaining, heirs of the body of the original coheir, one of
whose. heirs was so summoned, if any, and the heirs of the bo-
dy of the other coheir (a).

This latter opinion is founded upon a principle of law, that
possession does not affect the descent of a dignity, and that s
writ of summons to Parliament by an antient title, (as the
summons of the eldest son of a peer in the lifetime of his fa-
ther, by the- name of an antient barony then vested in the
father,) will not operate, so as to give any title by descent, col-
lateral or lineal, different from the course of descent of the
antient barony, and that he who claims a dignity most
make himself heir to the person on whom the dignity
was originally conferred, not to the person who hist enjoy-
ed it (6).

Dignities arc not within the statute of limitations, and may,
consequently, be claimed at any distance of time; and there are
instances of claims being recognized after the dignities bad

. been dormant for some centuries (c).

Ifapeerbe disturbed in his dignity, the regular course, says-
Lord Holt(ci), is to petition the King, and the King indorses it,
arid sends it into the Chancery or the House of Peers, for the
Lords have no power tojudge of peerage, unless it be given to>
them by the King {<•)•

Such persons as are-' not noble, are, by intendment of law,
among the Common* {/) ; but even these bitter are, by law, di-

. vided, into several degrees (g). We have here only to consider
such as are constituted by the royal authority. To borrow Sir
. Win. Blackstone's observations {&) on this subject, " The first
personal dignity after the nobility is a Knight of the Order of

. (<t) 3 Cruite Dig.2i3. («) II Co. 1. DeUwwr'i Cmc. W.

(*) Ibid. Jon-96.

(c) Skin. R. 431. Collin., 323. 11 (/) Co. Ui. 16, b.

Rep. 1. 4 Init. 3M. S Bra. V*ri. (j) I Bk. Cdm. 403.

Cm.16T,b. 3 Cra'ra* Dig. Btt. ""' '(*) Ibid. 4WI, 4.

tfl lid. Raym. 16.

Sl

rChfVni.l Fountain of Honours, #c. 117

fit. George or of the Garter, first instituted by Edward the
.Third, ATi). 1 344 (a). Next (but not till after certain official
, ^dignities, as Privy Counsellors, the Chancellors of the Exche-
quer and Duchy of Lancaster, the Chief Justice bf the King's
Bench, the Master of the Rolls, and the other English' Jrldges,)
. follows a Knight Banneret, who indeed, by statutes 5 : Rich. 2.
fit, 4. c. 4. and 14 Rich. 2. c. 1 1. is ranked next after Barons,
and his precedence before the younger sons of Viscounts Was
. -confirmed to him by order of James the First, in the tenth year
of his reign (5). But, in order to entitle himself to this rank,

t ,Ae must have been created by the King in person, in the field,
under the royal banners in time of war (c\ else he ranks after
Baronets, who are the next order; which title is a dignity of
inheritance, created by letters patent, and usually descendible
to the issue male* It was first instituted by James T. A"D.
2611, in order to raise a competent sum for the redbctioh of

"the province of Ulster in Ireland {d); for which reason all
* baronets have the arms of Ulster superadded to their family
* coat (e). Next follow the Knights of the Bath, an order in-
stituted by Henry 4* and revived by George 1. They ate so

^_ called from tlie ceremony of bathing, the night before their

■ creation. The last of these inferior nobility are Knights

Bachelors, the most" antient, though the lowest order of

t knighthood, amongst us ; for we have an instance [f ) of King

..Alfred's conferring tins order on his son Athelstaii. The

* £«sJoni of £he antient Germans was to give their young men a
.shield ancf a lance in tlie' great council; this was equivalent to '

'' ihe toga virilis of the Romans. * Before thi$ they were Hot
jjermitted to bear arms, but were accounted as part of the
father's household; after it, as part of the community. Hence
some derive the usage of knighting, which has prevailed all

' over the western world, since its redaction by colonies flora
those northern heroes. Knights are called in Latiti equitet

\ aurati-: avrati> from the gilt spurs they wote; and equites, be-
cause they always served on horseback; for it is observable

(a) Seld. tit. of Hod. 2, 3, 41* thle was conferred upon them, 3 Rep.
(A) Ibid. 2, 11,3. * . f 1S$.
. {<•) 4 Inatj^v , ; (e) TJe arms of Ulster axe, b Jiand
<rf) One hunted gftptltjgenejcjvaiMed gulea^ or a bjoody hand, m .% flel£ Br-
each one thousand pounds for which thai sent*
j? (J) Will. Malmsb. lib. <L '

that

118 Fountain qf Privilege. rCh.VHI.

that almost all nations call their knights by some appellation
derivecf from a horse* They are also called in our law milites,
because they formed a part of the royal army, in virtue of their
feudal tenures: one condition of which was, that every one who
held a knight's fee immediately under the Crown (which in
Edw. 2d's time amounted to 9.01. per annum) was obliged to be
knighted, and attend the King in his wars, or to pay a fine for
his non-compliance. The exertion of this prerogative as an expe-
dient to raise money in the reign of Charles l.gave great offence,
though warranted by law and the recent example of Queen
Elizabeth; but it was by the statute 16 Car. 1. c. 16. abolished,
and this kind of knighthood has since that time fallen into
great disregard."

The King possesses also the power of creating Esquires, and
therefore if the King by his commission, constituting a subject
a magistrate of military officer, &c. term him an Esquire, he
ipso facto becomes such, and his eldest son is qualified to kill
gam*, &c. (a). To the Crown belongs also the prerogative of
raising practitioners in the courts of justice to a superior emi-
nence, by constituting them Serjeants, &c. or by granting letters
patent of precedence to such barristers as his Majesty thinks
proper to honour tfth that mark of distinction, whereby they
are entitled to such rank and pre-audience as are assigned in
their respective patents (i).

As the fountain of privilege 'the King possesses various
powers. He may remove personal disabilities by making an
alien a defrizen (c); by etiablirig a bastard to be a priest, &c. (d).
And hi Majesty may in various instances exempt his subjects
from common law liabilities; as for instance, from liability to
serve in public employments, offices, &c (e), to be arrested in
civil actions, &c. {f ). •

On similar principles is fourided the right of the Crown to
hold and confer peculiar lucrative powers and franchises. The
jura corona or rights of the Crown, so long as they are attached
to the King, are called prerogatives ; but when such prero-
gatives are delegated to a subject, they acquire the appellation

(a) See 1 T, R. 44. Chitty, G. L. 55/6. 458, 9.

<*) 3 BUu Coin. ST- («) Ant»,c?s.3. AnJafltotbeKmg'i

(c) Ante, ch. 3. power to enable a town to fend repre-

<d) Anta, ch. 5. But - now « baftMiA WBUtivet it* Parliament, tee ante, eh. ft

•nay ha a jpcieat without, 1 fila. Cam. (/) See Index, tit Protection.

of

Ch. VIII j franchise.' 119

i

f J ♦ ' » fc 1

of franchise ; for all franchises are derived from the King (a). / ■
A franchise is defined (6) to be a royal privilege or branch of, •
the royal prerogative subsisting in the hands of a subject* by ♦
grant from the King. And formerly, grants of royal ;frapr , ;
chides were' so common, that in the Parliament which w«s'i
held 21 Edw. 3. (c\ there is a petition from the commons to »
the King, stating that franchises had been so largely granted , '
in times past, that almost all the land was enfranchised to the
great averisement and estenysment of the common law, apd in .
great oppression of the people; and praying the KJaptg to :
restrain such grants for the time to come ; to which his Aflat- -.
jesty answered, that the franchises which should be grafted -
in future, should be made by good advisement.. . . 4 . ;

In its more extensive sense the term franchise sigqifies ejr«y.,>
description of political right which a freeman may eqjoy an4 -1
exercise.

Being derived from die Crown, these franchises can in gj%^ *
neral only arise, and be claimed by royal grant or by prescrjp- T
tion which supposes it (d). They may be vested either iif nar <■
tural persons or bodies politic, in one man or in mpny, . bjut thf*fc ,
same identical franchise that has been before granted to one *
cannot be granted to another, for that would prejudice the foj>, ( .
mer grant (e). And it is a clear principle that fbe King <PJ$\ ' \
hot by his mere prerogative diminish or destroy, Jmrn^t^
once conferred and .vested in a subject, hy royal gfpnU

Franchises are extremely numerous ancj are of yario^ Jtiuds,
The. principal of them will be here mentioned* They *(# ^

1. counties palatine, cinque ports, &c apdeomuies corpo^t^A, \

2. corporations: S. game franchises* and hprein of the,
King's prerogative as to game, and of forests: 4, irjet^Jwaes;, ^
5. parks: 6. free. warrens: 7» fisheries and fi$D~ *« WW*
9. fairs and markets: 10.. waifs: 11., wrecks,;. J$, estr#y$} I
13. treasure trove, and 14. deodqnd** ,»,.;,,.

1. The counties palatine* Chester, Durham, and Ijanpntay .
the royal franchise of Ely, the courts of the cinque ports,

• » *

(a) * fa»t 881 ; 406. 4 Con. Dig. (d) Bract. I. 8. c. S4. (.&.&. <*

«44. . Bla.Com.37. ... . ,

(*) Finch, Law, 164. 3 Cru»«l%. (*)..U*L * BftL 4b. 191. .£41*

918, lftcd. 196. % . ,. . * -

ty 21 Edw.3. Rot. Put yoL 2. p. 16.

the

/!>'

1^0 ^p^^7r<^i^'oi^. [CfciVIIL

' tfieiii peculiar privileges* may be ranked among royal frantfu^?,
as they in ^general arose from the favor of the 'Crown -to. those

"particular (districts wherein we find them erected (a).

A court leet is a court of record) having the same jurisdic-
tion within some particular precinct, which the sheriff V torn

"hath in the county. This Court is not necessarily appendant
to a manor, Eke a court baron, but is derived from the sheriff's
torn ; being a grant from the King to certain lords* for the

' ease of their tenants, and resiants within their manors, that
they may administer justice to them in their manors (ft). .

"To every court leet is annexed the view of frankpledge ;
tiisib Jraritrptegtij which means the examination or survey of

** the 'frankpledges of which every man, not particularly pri-
vileged, was antiently obliged to have nine, who were bound

xthatAhe should always be forthcoming tQ answer any cqm-

" There ate also counties corporate; which are certain cities
'and towns, some with more, some with less territory annexed
*tb them; to which out of special grace ajjd favour* the Kifljjs
idP; England have granted tjie privilege, to t>e cpuntiespf th$m-
c&eJves,'iifid'"not to be comprized in any other county,^ -bu^tp
t>8 governed' 1>y flieir own sheriffs «an4v other xna^ji^tr^t^ fP
"ftat '661 officers of the county at large bav$ t^ny.powcyc; tD.in>-
*tteh&ddte thereto (c). "There is nodout>t that the Crcjwn ppi-
sesses thfc power of granting to any city, to have justices of.
^theiir own within themselves, and, may .exclude by express
«wottf$^hi& bounty justices from intermeddling in the ordinary
"Ktthf&i 6f 'ajustfce of the peace (d).

* 1 *

11 - &'£brporati0ns. — Corporations were originally formed for
'the purpose of promoting the welfare and interests of pomt
Itterce and the arts ; and for the better government of the sub-

.-• *•

. (a) See ftt* 4k> Ctonrtf Pattssate, , (<) 1 Bla. Com. 19ft. That the «ng

etc. 1 Bla. Con. 116, 7. 3 Ibid. 7S, may enable a town, &c. to choose its

%c ' Higher powers formerly eter- own sheriff. Vin. Ab. Prerog. M.b, IS

M hy U**h tatstine vested ' In the vb\. 87; '

Crown, 97 H. 8. c. 24. See Skinn. 604* (d) 3 Stra. 1 154. 3 T. R. 279. post.

(b) * Inst. 71. 4 Inst c 54. 3 Burr. 4 T. R. 456,
Rep. IS59.

ject.

6i; Vf Hi] ft^hfas.-^rpomim$. fill

jefcfc A corisotidatlota of interests tends td their advantage and
preservation; and ensures a degree of Vegul^ty,, unai^

■ and strength, which cannot be found in a disjointed ahd . un-
connected body. The peculiar properties of a Corporation;
its political and indivisible Character; and its capability of.
transmitting its rights and immunities to its successors to tl^e

'retaotest period, by operation of law and without any respect
to the individual and personal capacities of its members ;'f aije.
incompatible with the notion of an unconnected assembly qi.
persons ; without the means of expressing their will, or a hand

' exclusively appointed to protect their united rights. Political
governments and sovereign power originated from a conanon .
sense that their existence was necessary .on these principles^
and a subdivision of these artificial or political constitutions .
naturally and imperceptibly followed* : " /"?

A corporation may be defined to be a collection of riiajy
individuals, united into one body, under a special denomina-
tion, having perpetual succession under an artificial fontanel
vested by the policy of the law, with the capacity of acting in
several respects as an individual, particularly of taking and
granting property, of contracting obligations, and of suing and
being sued, of enjoying privileges and immunities in coinmon,

'and of exercising a variety of political rights, more or legs $*-
tensive,' according to the design of its institution of the powers
conferred upon it, either at the time- of its creation *nr ai
subsequent period of its existence (a).

Single persons cannot partake of many, of the properties of? a
corporation, but as they may partake of a few, as for instance,
the capacity of having perpetual succession'; our law ha$ divi-
ded corporations into two classes*, corporations aggregate and
corporations sole (A). Corporations aggregate, consist, (c) of
many persons united together into one society, and are kept, up
by a perpetual succession of members, so as to continue fop .
ever; of which kind are the mayor and commonalty of a city,
the head and fellows of a college, the dean and chapter of a <
.cathedral church. Corporations sole consist of one person .
only and his successors, in some particular station, who are
incorporated by law, in order to give them sou*e legal cap*- .

(«) 1 Kyd. 13. (c) 1 BU.Cw£u 469.

(b) Co. Lit. 050, a.

7 cities

129 Frarwkists.—Corporation*. [Ch.VIli:

dt5eV*ndr advantages, pafrtictdarly that of perpetuity, which in
their natural persons they could not have had. In this sense
the King is a sole corporation (a); so is a bishop; so are some
deans and prebendaries, distinct from their several chapters;
and sois every partem and vicar.

Corporations, whether sole or aggregate, are also divided
into ecclesiastical and lay. The former are composed of spiri-
tual persons, and hare for their object the support of religion
and the church. The latter are instituted for temporal pur-
poses, and are either civil or eleemosynary. Thus die King is
a civil corporation, that the power, the splendour, and die pos-
sessions of the Crown may be transmitted to the successor
without any interregnum. Other civil corporations are esta-
blished for die maintenance and regulation of some particular
object of public policy: such as the corporation of the Trinity
House 'for regulating navigation (6) ; die Bank and the dif-
ferent Insurance Companies in London. Others for the regu-
lation of trade, manufactures, and commerce : such as the
East India Company, and the Companies of Trades in London '
and -other towns. Others for the advancement of science far
general or some particular branches of it: such are die College '
of Physicians and the Company of Surgeons in London, for
the improvement of the faetffical science; die Royal Society
for the advancement of natural knowledge; the Society fcf-
Antiquarians for promoting tfce study of antiquities;' and 'the
Royal Academy of Arts for cultivating painting and teulptttto*
Some are abo instituted for the purpose of local government :
as -Mayor and CMimbnalty, BaiHfi& and Burgesses of any
particular tbwn^or district. And some corporations of this
kind «re not only for ideal government, but for particular
purposes: las Churchwardens for die' conservation of the parish
goods, tea; and die Universities are civil corporations {p).
Eleemosynary coiporatiotos are such as are constituted for die
perpetual distribution ttf the free alms or bounty of the foun-
der of them, to such persons as he has directed ; as Hospitals,
Colleges, fee. (tf). ' ' "'

The exclusive right of the Grown to institute corporations,
and the necessity for, its express or implied consent to their

(«0 Ok lit. 43. (e) 3 Burr. 1656.

(t). Sftwyer*! Arg. Quo ffar.*. (rf) 1 Bla. Com. 471.

existence,

existence, is undoubted; . and wa% so far back a$ the mjgfcof .
Edward 3«, allowed to have been long settled a* clear law (a). «
There are indeed certain corporations which exist solely by
force of the common law* Of this sort. a?e the King, himself
all bishops, parsons, vicars, churchwardens, and some others,
who, virtute officii are corporations (A) ; the. law having affixed
to their respective capacities from time immemorial, without
any express power from the Crown, certain properties of a
corporation* Even in corporations of this description, the
King's consent is to be implied, at least as a member , of the
•community (c).

. A corporation by prescription,, is a corporati an which has
existed from time immemorial, and of which it is impossible
to shew the commencement* by any particular charter; as the
city of London and many ^others (d). In this case the King's
original consent is presumed*, and it ia supposed that the. chap-
ter is lost or destroyed, by time or accident
, The King's consent to the formation of a corporation is
expressly given in the case of his granting a charter. This •
need not be done by any particular form of words, the usual
expressions are "creamus, erigimust Jundamus, incorporamusj"
but any equivalent words* as cimstitopmus) &c will suffice (e).
A grant to a set of men that they may have " GilfUm mtreoUh .
riam" a mercantile meeting or assejnbly, is sufficient to incor-
porate them {/). So a. gift of land, from the King to the %
burgesses, citizens or commonalty, of such a place, was.conr
ceived to be sufficient to incorporate them, under such collect*. ,
tive name (g). And if the King grant to the men of Dale tb*t -
they may elect a ,Maj or every year, and that they may plead and :
be impleaded by the name of Mayor and Commonalty j this .
seems to be sufficient. to incorporate them (A)*, .^aid there, are
many instances of grants by charter to the, inhabitants of a
town, " that their town shall be a fjee borough," and that they
shall enjoy various privileges and exeinptions, without any

(*) Bract. lib. «. c. 24. t 55, 6. 49 U) « Rol. Ab. 197. 10 Co, 3<k

Edw.3;3,4. 49 Art. p, 8. Bro.Ab.tit, Style* 19*.
Corpor. 15, Prescription, 15. 10 Co, (/) Ibid. 1 Rol. Ab. 513.

3d, b. 1 Hoi. 51*. (g) 7 Edw. 4. 14 Bro. Corpor. 54.

(b) 1 BU. Com. 479. 1 Kyd. 39, 40. (A) 21 Edw. 4. 56. Bro. Corpor. 65 ;

(c) 1 Kyd. 41. bat tl Edw. 4, 57, b. Mem contra.

(d) 2 Inst. 330.

direct

1*4 Franchi$es.~-&rporathns. [Ch.VJIL

^fliir^ctdawse of incorporation; and yet by virtue of such char-

tet, sucftt towns ha*e been unifonnly considered as incorpo-
* r*ted(*)« Nor is it -necessary that the charter should expressly

c6nftr those powers^ without which a collective body of men
1 canntH be a corporation, such as the power of suing and being

sued, and to take and grant property ; though such powers are
X fri gehd^*xp*essly give© (ft^ A grant of incorporation to the
: citfeetoa br burgesses of such a. city or borough, especially ..an

old gfnikvi*1?0^ « their successors (c)>"

•■■/■• A grfent of load* *> the men or inhabitants of. Dale, fore-
' tiiftos et niecrttotih* tui^ rendering rent, makes them a corpo-
" ratiori ail to these lamb (d): and if the King grant kominibus
v'<& JMftgftf* to be discharged of toll, this is a good corpora-
; fitrti to tUs Intent bat not to purchase (e). . If the words of the
" cWrter be doubtful* they may it seems be explained by con-
°*GMfartoki&» usage (/): and this, added 40 the wording oft a
Charter in various respects, may establish ja, corporation to be
£Hs rife^criptiflre corporation, though there be a recent charter
^t^ritkrn*hg w^ords of creation only,, witktofc words, of coj&fir-

f * ■-' \ fiimtho^h it 4s4he province of lteC<^<wsgri, to (WMtfrjtecpr-
K^brath^lsv h oannot- compel any;body>.to aocepfc ito.cbwtpr.
vv Tt* \^&£pr(Mdftit{e< coafiygqJ by a gnfcitof incorporation,
^ifcay toef c^uAtefcalanced >y acmpe csMriilion* :witb,*bich fc is
^a^m^pAftkdt 'add fe&ae thertfbre bficpmetaa egfabliphed rule
" ^ tllat Hit grftttt mftstfce ;abteptad by thai v okwtary *oonsent of a
1 ^njferrry ^of • ' tfe^e i«*enu^<iMo» it is . intended . t* . incorporate,
* :titbferWite the gwpt'vitt dbtf ipid^A). A patent procured by
*ij*ptt& fewpe>soa*o^ly shall net, biad the rest ; nor can a town
o b^t^rjMrated^ri^iout <|be consent of the nwtjor part of the
^%Adfittttiitfff) ;; ndr exienthen ie it compulsory on any one to
i: btedc^^ a hietnbein (ii)* If however a smaller number than a
s Wajorify of aii indefinite *patt o£ an existing corporation be
^sufficient t^'coristiwte -a lawfid asdeiably for doing corporate

i f

Ci.\. win-.. .., ; ^\.' j:, i; ,,,

(a) Vid. Firm. Burg. c. II. fend Ma- (e) 21 Eclw. 4, 59.

doi, Hiat. ofExch. 402, the Charter of (/) 3T.R. 279; 288, note. 4 T.

Dnnwich. ■»••>,.., 4X P. 421. 4 Fast, 338. 5 Taunton, 752.

ty/ty* W 00, 29, 1* t , V J K &* Peak, E. 4th ed. 1 31.

(c) Brownl. and . Gqiito^. 20.3. part, [' . ' (e) T 4 East, 346.

29S. -;./" .,,'; * .\ '*'&) Roll ft. 226/

(rf) 21, 24," 56, ^ Edw. i; i i Hen. (i) 2 Brownl. 100.

1 1 13, Cro. El. 35. (*) IT. R. 588. - »*i

si*

acts,

- *^, 1* seem* the «dne number nmy ^fecto% $G^V*vwr
chef*er(«). Noporticidarc«c€inu©nyi8iiece»sary4a0c#^utet^n

i acceptance of the charter by the grantees- • their ftpq q^j$0ju?g
-" for even a fcfcolt period of time sectns tq.49lamii9^((>q^^J^B-
" tion; oiid to render the? acceptance imrocatfat^..^^^*
is a matter to be tried by a jwy(<?)» \.- -t ..- * #-rt #» ^.^
' It is admitted on all hands, that the charter by wlii^ a.ty*Jy
4s incorporated must be accepted, as it is offered :: parrot j[ta
provisions cannot be rejected, and part accepted; jb^4- f^par-
tia! acceptance 10} in snch ease* an acceptance intofaJM.f But
there appears to be some doubt whether, if a new char^^e
given to a corporation already in being* and ftctfpg, W^fl a
former charter, or (which is equivalent thereto) pr^qr|j%ve

- usage, such corporation already existing is at Uberty?to^Q$c^pt
the new charter pro tanto only, rejecting die itemriiidejv Jtfpt

■•- they may reject the new charter in toto, is indub&sJbta^hs/ftiQse
' the King cannot take away, abridge* or alter s©y.iibefti^^)r
privileges granted by him or hi$ predeoessor% wtfpwtr gie
consent of the individuals holding them(€^ ; And 1a tbe^qpe
of " The King v. The Vice-Chancellor, &c of Ca^brkjge^,"
Lord MAhftfieW eaid, that " an old« corporat^O i« npt ^b^iged
to accept anew charter in Into* and to receive ejtbeyfla^ii>r
•"more of it; aftd that they mey act. partly unde^^flHUy

- under theh* old charte»x)F/pi*saip6oiu". jTStat'taww^ifP*
a case in which the question rather was a^4p^the,apf/eptyp^,of

-* toe of several meonnectad and andepafttattr sfctfutea ^,cb*r-

- tiers to which perhap* th,ere may b©/no^«fejectM)|u . But ia bold
that a cdrporttion i* at Hbe

' and dependent provisions offcsed them byja«h*rtfirv 1f<wWJ>e
to permit them, and not the King, to. make it % l^ctipg
part of a consecutive provision, arvalfctratipn imgr^pe effected
in the grant which renders it wholly diffip*nl< frpjn tb*t wWfch
the King meant to confers Thjs distinctipn sapnir {q h$ve
been taken by Mr. J* Balkr, in # The Jiing,^ Awexy {g),"M
which he observed, " that the averment in the plea before him

'. t

»'.

*>

(«) 1 T. R.58S. (rf) 3 Burr. 1656. "1

W 4 Mod. 369. 1 SaJk.167. 1 Ld. (*) See precedes Aotes, l'Ky*.S7.

lUym.39, 32. 1 T. & 581. * IbkL C/7 SBurr. 1656J r •

1S9. (J ) 1 Term Rejp. 589.
CO Ibid. .. v v

proceeded

146 Ftanefiises.-^Cofporations. [Ch-VHI.

proceeded on a mistake, by supposing that a charter may be
accepted in part, and rejected as to the rest. The only iii*
stance in which I have ever heard it contended that a charter
could be accepted ih part only is, tohere the King has granted
two dittinct things, both for the benefit of the grantees: there
I knqw that some have thought that the grantees may take one
and reject the other* However that may be, it cannot extend
to this case. This corporation must either have accepted in
tbtO) or not at all ; if they could have accepted a part only of
the charter, they would have been a corporation created by
themselves, and not by the King. If a charter directed that
th& corporation should consist of a mayor, aldermen, and
twenty-four common councilmen, they could not accept the
charter for the mayor and aldermen only, omitting the com-
mon councilmen."

31ie charter should give the corporation a corporate name (a) :
but it may have a name by implication ; as if the King should
incorporate the inhabitants of Dale with power to chuse a,
mayor annually, though no name be given, yet it is a good
corporation by the name of mayor and commonalty (b). And
corporations may change their names, as they frequently do in
new charters, and they still retain their former rights and pri-
vilege* (l). As it is the King's charter that creates corpora-
tions, s6 hid Majesty may by nis charter mould and frame them
klvihe ftr$t instance as he thinks fit; and may by the consent
of 'the corporation afterwards remove or grant additional rules
for flieir governance, consistently with principles of law (d).
In ecclesiastical and eleemosynary foundations, the* King or
the founder may give them rules, laws, statutes, and ordi-
nances, which they are bound to observe : but corporations
merely lay, constituted for civil purposes, are subject to no
particular statutes ; but to the common law, and to their own
byJaws, not contrary to the laws of the realm (e). And in
such case, without express words the various incidents to
corporations apply (f). The constitution of a corporation as
settled by Act of Parliament cannot be varied by the acceptance
of any charter inconsistent with it (g). And when it is intended

- * ■

(a) 1 Bla. Com. 474, 5. 10 Rep. £8. (?) Ld. Raym. 8, . .

(*) 1 Salk. 191. . , . (/) See 1 Bla. Com. 475. Sea Be*

(c) 4 Co. 87. * Ld. Kaym. 1839. Abr. Corporations, D.

(«*) 3 Mod. 13. (f) 6 T. R. *#8.

' ' 6 that

Cb.VIII.] Franchises.— Corp^ru^nf. i$T

*

thft a corporation should be established, vested witl* poweip
.or privileges which by the principles oi^tlhfc. comnjpn law c^iif
not be granted by the King's charter! then reajursct jnust if*
bad to the aid of an Act of Parliament; as if it b^ h}ten^4
to grant the power of imprisonment, as in the*c^ qf.tffe^piy
leg^ of Physicians i or, to confer an erclusiye itfghtof tr^fing^*
as in the case of the East India Company^ or w£ten>a coiu£v
is erected with a power to proceed in a manner different fi;pm
the common law. which is the case of. the VicerChancellorfs
Court in the two Universities (a). But it has been well ob*
served (i), that most of those statutes which are..usualty $ited
as having created corporations! either confirm such..a? ha^e.
been previously created by the King ; as in the. case of . thp
College of Physicians, which was erected by charter in the
tenth year of Henry the 8th., and afterwards confirmed in. P^
liqment by an Act of the 14th and 15th of the same &ng(f)£
or they permit the King to erect a corporation infutprfy,
with such and such powers, as in the case of the B^nlf. of
England (d\ and the Society of the British Fishery (e); so that
the immediate creative £ct is usually performed by the, King
alone, in virtue of his royal prerogative*

Though, as before observed (jf), the Crown may grant tp
any city the privilege of having Justices of their- own within
themselves; yet a charter granting jurisdiction to Borough*
Magistrate? over a district not within fhe Borough, 4oes W£
exclude the Comity Justices without, express, word?* , An<IL.
though such charter contain wpr/ls of referenpe to fojjnef >
charters, in which exclusive jurisdiction is given to thg
Borough Justices within the Borough, .and «$d that, they
shall have jurisdiction within the new district in; tam <qm$Us
modo et formd^ &c; yet if there be in thpt latter charter a 4
saving clause of the rights of the Crown, and of all other
persons, the Borough AJagistratesj haye only a ,cpncujxqn£ -
jurisdiction with the County Justices (g). , , .

It iff now settled that the King may not only grant to ^
subject a power and. licence \o erect a particular specified

(a) Vid. Cro. Gat. 73, 87, 88. Jenk. (rf) 5 and 6 Win, and M. c. 20.

97, 117. (e) 23 Geo. 2. c 4,

(A) 1 BU, Com. 473, (/) Ante, 120. SStra.1154.

(«> 14 sod 15 Hen. 8. c 5. Vid, B. (g) 3 T. R. *79.tnd 4 Ibid. 4$6,
Co. 114. • ; ^ ••••.:.,

corporation ;

1 48 Franchises^^^Corporations. [Ct. VIll

corporation; but may give a general power by charter to erect
a corporation indefinitely (a). The Chancellor of die Uni-
versity of Oxford has by charter such a right, and has actually
often exercised it in the erection of several matriculated
companies now subsisting, of tradesmen subservient to the
students* His power is most frequently exercised in the case
of eleemosynary or charitable corporations, when a licence is
granted to a subject to erect such a corporation and to endow
it with possessions or revenues, in which case the donor is
called the founder. With respect to the mode of erecting
such corporations, where there is a subject founder, this
difference is to be observed: either the King expresses the
words of the incorporation, designs the place, appoints die
number, and gives them a constitution and a name by his
charter, so that the corporation is complete; and then the
founder or donor has nothing more to do than to make doter-
tion, without any instrument comprehending any words of
incorporation, for with that in such & case, the common
person, who is the founder, has nothing to do; or the King, by
lis charter, may reserve as well the nomination of the persons,
as the name and constitution of the corporation, to the person
who is to be the founder ; then the latter must name the per-
sons, and declare by what name they shall be incorporated, and
what powers they shall exercise; and when' he has done this,
then they are incorporated by virtue of the King's letters pa-
tent,' ana not by the common person, fpr he is hut an instru-
ment, and it is the King who' makes the corporation in such
case, in the same manner as if aH had been comprehended in
the letters patent themselves, according to the maxim that
* jut per altwn fadty per se ipsum facere videtur (b)"

The incorporation ought in feet to precede the dotation,
"because, before the incorporation, there is no capacity to take
as a corporation (c); but it is not necessary that in the letters
patent the licence to incorporate and the licence to endow,
should be in distinct independent clauses, or that the licence
to incorporate should, in the order of expression, precede that

(•) Br«. Ab. tit. Pitvo* 55. Via. Grant, SO. S Hen. 7, IS, ft, b. fS

Ab. Prmg. SS. pi, l& lBk.Com. Ha* 7, 7. cited 10 C*. 35, b. 1 Kyd.

474. 51, *>

(*) 3* Edw. 3. U, W *8 EJw. 4, (c) Vid.10 Co. t6,b.

to

Cta.VHI.]} Franchises. — Corporations. 129

to endow [a). ' "Neither is it necessary that the corporation
should be actually in existence at the time of the licencte to
grant to it: it is sufficient that it exist at the time of the grant
made (8). Nor need all the persons who are to be constituent
members of the corporation be named in the letters patent ; it
is sufficient td give a power of future nomination or election fc).
On the principle that the King's consent is necessary to the
~ formation of a society, fit is clear that the general corporation
of a town, &c. cannot without the King's express authority,

* and even by subdivisions, &c. create a subordinate and denen-
derft, or independent, corporate body (d). And in " the lung
0. the CooperV Company, Newcastle (e)" Lord Kenyon said,
•* there is a case in Salkeld (/) where it is said that a corpo-
ration may make a fraternity; but no notice is taken of that

' point in the other Reports j^} of that case. I cannoV concave
that they have such a power; it can only be effecteel by the

* legislature or t)y the Crown.** t But there can, it seems, be no
1 objection to a corporation or any number of peVsons^ forming a
x» mere club or assembly for the purposes of conviviality, etc.

* though' 3tfch club' of assembly cannot act as a corporation (#).

1 The Parliament, by its absolute and transcendent authority,
may perform this or any other act whatsoever: and actually

* did perform it to a great extent by statute 39 Eliz. c. 5. which

* incorporated allTlospitals and Houses of Correction, founded
by charitable persons, without further tfrophle; and the same
has been done in other* cases olf charitable foundations. But
otherwise it has not formerly been usual thus to intrench
upon the jfrerogative of the Crown,' ana the King may prevent
it when he pleases. And jh the particular instance before
mentioned, it was done, as $\i Edward Coke observes (#), to
avoid the charges of incorporation and licences of mortmain
in small benefactions, which in his days were grown so great,
that they discouraged many men from undertaking these pious
and charitable works (£)•

(a) 2 Hen. 7. 13, ft, b. dted 10 Co. 2 K<-b. 53.

37, 8. (e) 7 T. R. 543.

(4) Ibtf, 1 Xjfi, 54. (/) Sa fMige 193. 1 Kyd. 47, fee.

. (c) 10 Co, 8, b. ft., *. (g). See G Mod, 128. ttott. R, 433.

(d) See 49 Ass. p. 8. 49 E. 3, 3, 4. (/») See Comb. 372, 3T3.

Bto. Corpor. 15, 45 j PreftOtiption, 15. (*) 8 I nit 722.. . > -

10 Co. 33, b. 1 Rol. 512. 1 Sid. 291. - (A) 1 Bb. Com. 474. 1 Kyd. 57, fcc.

K Th«

1 30 Franchises.— Corporations. [Ch. VIII.

The powers of the Crown as to visiting of corporations
also demand attention. A visitor is a person appointed by law
to inspect the proceedings of corporations, and to secure their
adherence to the purposes of their institution, and to settle in
general, without appeal from his decision (a), any disputes
respecting their management. The founder of a corporation
is naturally its visitor. In the case of eleemosynary or charit-
able institutions, a .private person is in general, the visitor as
founder. The founder of all corporations in the strictest and
original sense is the King alone, for he only can incorporate a
society; and in civil incorporations, such as mayor and com*
monalty* &c. where there are no possessions or endowments
given to the body, there is no other founder but the King; hut
in eleemosynary foundations, such as colleges and hospitals,
where there is an endowment of lands, the law distinguishes,
and makes two species of foundation; the one fundatio inci~
pien&i or the incorporation, in which sense the King is the
general founder of ail colleges and hospitals ; the other Jundatw
perficiensy or the dotation of it, in which sense the first gift of
the, revenues is the foundation, and he who gives them is in law
the founder, and it is in this last sense that we generally call a
man the founder of a collegfe or hospital (i). It is said by Sir
Edward Coke, that the foundership is so inseparably incident
to the blood of the founder, that it cannot be granted over, and
that if a sutgect founder should grant his foundership to the
King by deed inrollcd, it would be avoid grant (c). But here
the Ki^g has his prerogative: for if the King and a private
man join in endowing an eleemosynary foundation, die King
alone shall be the founder of it (<J). And in general the King
being the sole founder of all civil corporations, and the en-
dower the perficient founder of all eleemosynary ones, the
right of visitation of the former results, according to the rule
laid down, to the King; and of the latter to the patron or
endower. Where the founder of a college or eleemosynary
corporation has appointed no special visitor, if his heirs become
extinct, or if they cannot be found, the right of visitation de-

(«) 1 Burr. 400. (c) 11 Co. TT, a. 78, a.

(4) 10 Rep. 33. Wh<*e no express (d) 50 Ass. 6. 1 Hoi. 514. 9 Co.

visitor of a royal Endowment is np- 129, b. 2 Inst. 68, cites 44 Edw. 3.

pointed, the Crown is visitor by impii- 24, 25.

cation, 2 PK W. 325.

volves

Cfe.VIIi:] Franchise**— Corporations. 131

volvea to die King, to be exercised by the Chancellor in the
same manner as where the King hirrisfelf is the fourider, sub-
ject to the regulations of the founder, &c (a). ♦

The King being thus constituted, by the law, visitor of all
civil corporations, the law has also appointed the place Wherein
he shcfll exercise this jurisdiction, which is the Court of King's '
Bench ; where, and where only, all misbehaviours of this kind
of corporations are inquired into and redressed, and all contro-"
versies decided. And this is the meaning of our lawyers, when
they say that these civil corporations are liable to no visitation;
that is, that the law having, by immemorial usage, appointed
them to be visited and inspected by the King, their founder,
in his Majesty's Court of King's Bench, according to the rules
of the common law, they ought not to be visited elsewhere, or
by any other authority (&). And this is so strictly true, that
though the King, by his letters patent, had subjected the Col-
lege of Physicians to the visitation of four very respectable
persons, the Lord Chancellor, the two Chief Justices, and the
Chief Baron; though the College had accepted this charter^
with all possible marks of acquiescence, and had acted under
it for near a century, yet, in 175S, the authority of this provi-*
sion coming in dispute, on an appeal preferred to these sup-
posed visitors, they directed the legality of their own appoint-
ment to be argued;- and as this College wds merely a civil and
not an eleemosynary foundation, they at length determined,
upon several days' solemn debate, that they had no jurisdiction
as visitors,1 and remitted the appellant (if aggrieved) to his regu-
lar remedy in his Majesty's Court of 'King's Bench (I).

A licence from the King is necessary to enable a corpora-
tion to purchase and hold lands in mortmain id).

• •

(a) 4 T. R. 833. S Vef. Jun. 609. by Trip of error, itrtiay he thought to

(b) 1 Bla. Com. 481. This notion is want one of the essential marks of ,visi-
perhaps too refined. The Court of torial power. lb. note (c).

King's Beach (it maybe said), from Its (c) 1 Bla. Com. 481 ,2.

s^aeral'svperinteadsnt authority where («f) Co. lit 9. 1*8 Wm, 3. c. 3.

other jurisdictions are deficient, has 1 Bla. Com. 479. 2 Id. 268, &c. 1

power to regulate all corporations Wooddn. 494. A writ of *d quod (Um-

where no special visitor is appointed. nun '» not ugaal on granting a licence

Jiut not in the light of visitor : for as to alienate in mortmain., Co. Lit. 100,

its judgments are liable to be reversed b.; Hargr. n.

K 2 It

132 Franchises. — Corporations. fCh.VIII.

It is a principle of law, that the King is bound by his own
apd his ancestors' grants, and cannot therefore, by his mere pre-
rogative, take away vested immunities and privileges (a). But a
corporation may be dissolved, by surrendering its franchises, into
' thf hajids of the King ($), though legal dissolution is not occasi-
oned thereby, and the charter operates till the surrender be in-
rolled, because the King can take nothing but by matter of
record, and a deed is not of record without enrolment (c).

A corporation may also be so far dissolved by the loss of one
or more of its integral parts, or by the deficiency of the major
part of members necessarily constituting an integral part of the
corporation, and which the remainder are not enabled to sup-
ply (<£)* as to he incapable of renewing itself, so that the Crown
may grant a new charter to the inhabitants of the same place.
And yet if the Crown think proper, it may revive and conti-
nue the old corporation, by a new grant to the remaining mem-
bers, of the old, dissolved, and dormant corporation,' together
with the other inhabitants of the place (e).

A corporation may be dissolved by misuser or abuser (f).
<6ut ty the statute 11 Geo. 1. c. 4. the neglect to chuse officer*
on the day appointed by charter or usage, shall not create ft
dissolution of the corporation.

When a corporation has but an integral part, or is so far
reduced, thajt it cannot continue the succession, it is dissolved
without any legal proceeding. " A W™ fa0***? ** proper,"
say?, Mr. Justice Ashhurst," where there is a legal existing
, body capable of acting, but who have been guilty of an abuse
of the power entrusted to them ; for as a delinquency is imputed
tp th^m, thegr ought *ot to be condemned unheard;, but that
does. not apply to the case of a non-existing body; A <j*o
warranto is necessary where there is a body corporate, de facto,
who take upon themselves to act as a body corporate, but who,
from some defect in their constitution, caxmot legally exercise
the powers they affect to use." I£ in a prosecution against a
corporation, the judgment be for the defendant^ the form of it

(a) Admitted in the Kkig u. Amerjr, (tf) 4 East, 17.

2T.R. 515. pott chap. 16. s. 5. (?) Bac. Ab. Corporation, G. S Burr.

(*) 2 Kyd. 465, 6. 1 Bla. Cum. 485. 1866. 3 T. R. 199; 241. 14 Eatf,

(0 Salk. 191. 12 Mod. 247. 4 East, 357, note a.

927. (/) Bac Ab. Corporation, G.

Ch.VHL]

Game Franchises.

lSS

is, "that the liberties be allowed {a) ;" if it be for 'the Crown,
and the parties have continued possession of the franchise by
wrong from the beginning, the judgment is, " that they be
ousted ;n but if they once had title, and lose H, the judgment
is, a that the liberty be seized into the King's hands (b).n The
prior judgment of seizure is called a judgment;*" qnousqfte" this
judgment, it bath been thought, would dissolve the corpora-
tion, if the parties did not come in and avoid it the same, or at
the farthest, the next term, and that there was no use in a final
judgment, but to shew that the King will take advantage of the
Forfeiture, which he may declare by the grant of a new char-
ter^). But tliis opinion was over-ruled in (he House of
Lords, where it was determined, that the effect of this judg-
ment was merely to lay the King's hands on the franchise of
being a corporation, so that 1§ie corporation could not use its
liberties, and the action of its vital powers was suspended; that
in that situation the King might appoint a custos, and might
introduce a new corporation by charter, to whom he might
commit the custody; but that the old corporation were entitled
to redeem their liberties, and remove the King's hands, upon
which the power of the new corporation must necessarily cease,
and the letters patent become void (d).

5. Ot Game Franchises, and herein of the "King's Prerog**
live as io Gamr, and of Forests.

m

Before we consider the right of the King to grant forests,
parks, chases, and warrens ; the question whether or not the

f» Co. Bntr. 555, b.

(/>) Yelv. 192, Go. Bntr.. tit, too <
Warranto.
' (<?) Rex v. Amery, 2T. R. 515.

(rf) 4 T. ft. 122. Vide the judgment
in Rex v. Avery in the Home of tord4,
in the account of that case io tsto vols.
quarto, and 2 Kyd. 4? 6., see. 2 Bac.
Ab. 31. tit. Corporation, G. — With re-
spect to the form of a final judgment,
it ww determined in Sir Janes Smith's
case, that the corporation of London
was not dissolved by the judgment at
recited in the act of 2 W. and M. stat.
1. c. 8. which was, 11 that the liberty,
franchise, and privilege of the city of

Lendta, being a bo<ty politick, dec*
.should be seized," for the word * qp being
omitted before the word 'l*i«g-', the
judgment was not against the corporate
existence of the city, but against the
franchises it enjoyed r and fiort said,
" that a corporation might subsist after
its franchises were taken away; for that
these were not essential to it, but cnty
a privilege appertaining to it; thaHh£
essence of a corporation was to nfcke
bye-laws, and govern their membefls,

which a corporation might do, though

their franchises were seized." 4 Mod.

52. Skin. 310. Carih. 217. 1 Show.

263.

exclusive

1 34 King's Property in Game. [Ck. VIII.

exclusive property in wild animals, or game, is vested in the
Crown, is entitled to investigation.

By die law of nature and reason, wild beasts and undomestv*
cated birds, are a species of usufructuary property, as freely
the property of the first occupant as the air on which they fly.
They form a part, and were formerly a most material party of
those resources which Providence has provided for the suste-
nance of man. Till an actual seizure of animals, fer& nature,
be made, the property in them remains, by the law of nature,
in a species of abeyance (a). Game is an object of pursuit;
it can only be acquired by exertion, and he who occupies his
time; or exercifces bis ingenuity, in obtaining these animals,
ought to possess them* And so it was held by the imperial
law, even«o late as Justinian's time : " Fera igitur bestue, et vo~
lucres, et omnia antmalia qtue mart, cctlo, et terra nagetmtur,
simul atque ab aliquo captajuerint,jure gentium statim UUus eise
incipiunt. Quod enim nullius ettf id naturali ratione occupant*
conceditur (ft)/9 Before the Norman Conquest, a similar doc-
trine existed in this country. As observed by Sir William
Blackstone (c), " every Freeholder had this fall liberty of
sporting upon his own territories, provided he abstained
from the King's forests, as is fully expressed in 'the law*
of Canute, and of Edward the Confessor: " Sit qtdl&et komo
digmu venatione sua, tnylva, etinagris, Mi propria, dim
domimosuo; et tihetineal o$nnis komo avenarim regiis, ubimmque
pacem en habere votuerit?* which, indeed, was the antient law
of the Scandinavian Continent, from whence Canute probably
derived it " Cut foe enim in proprio Jundo quandibet feram
quoquo modo venari permissum" The introduction of the
feudal system into England at the time of the Conquest, vested
in the Crown all the privileges and rights respecting game,
which the principles of that system authorized. And it cannot
be doubted, that the right of the Sovereign to reserve to him-
self and confe? on his subjects certain peculiar and exclusive
privileges respecting game, was part of the policy of the feudal
constitution, for the .purpose .of keeping the people in a state of
subordination, and preserving, for the exclusive enjoyment of
the higher classes, a sport suited to the martial genius of the

(a) Sec 2 flfc. Com; 14* and 411. (<•) 2 Bla. Com* 415.

(4) Iu«t 2. 1, If.

age.

Ch. VIII.] King's Property in Game. i 95

ag£(a). It became a principle of the English law, that from
the Sovereign alone such exclusive rights can be claimed. It
may em* be admitted, that the feudal principles enabled the
Kihg to prohibit die destruction of game by those who did not
possess a royal franchise. But it by no* means necessarily fol-
lows, that the sole property in game vested either in the King
or his grantee. Bracton and Fleta appear, indeed* to have*
drawn this inference. The former observes* " Habet ethara
(&**) dejure gentiwn in menu ma qua dejure natural* debe-
rem esse ccmmmUaf skutferas besting et aves nan ddme*ticas(b)"
And Puffiendoriv -and other writers on general kw, toy down
the same principles. Sir William Blackstone subscribed to
the general position, and zealously enforced the doctrine, that
the property of all the game in England is in the King.(c),
He observes, that "upon the Norman Conquest a new doctrine
took place, and the right of pursuing and taking all beasts of
chase or venery, and such other animals as were accounted
game, was then held to belong to die King, or to such only as
were authorised under him ; and this, as well upon the prin-
ciples of the feudal law, that the King i* the ultimate proprie-
tor of all the lands in the kingdom, they being all held of him
as the chief lord, or lord paramount of the fee; and that, there-
fore, he has the right of the anftecsal soil* to enter thereon*
and to dulse and take such creature* at his pleasure: aa also*
upon another maxim of the common law, that these animals
are bona vacantia, and, having no other owner, belong to
the King by his prerogative- . As* therefore, the* former
reason was held to vest in the King a right to pursue and
take them any where, the latter was supposed to give the
King, and such as he should authorize, a sole and exclusive
right."

With respect to the first principle from whence Sir William
Blackstone has deduced this doctrine, it may be observed (as
remarked by Mr. Christian), that it is not evident from the
King's right to the universal soil, that he should hove a better
right to such creatures than to any other production of the
soil (rf).

The second reason relied upon by Sir Wm. Blackstone,

(a) See 2 BUl Com. 413, fcc 413, 419 ; 4 vol. 174, 415.

(6) Lib. 2. e. 24. s. 1. (tf) See 3 BU. Com. 419, note 10.

(0 See 2 Bla. Coin. 14, 5 ; 391, 4;

that

s

isa King's Property in Game. [Ch* VIII.

tha$ these animals betaig to the Kings* bona wamntia* and
sp having no other owner, appears also, very unsatisfactory.
The ; geneial. rule seems to be that ism vaomatia only belong
to, the. Jiing 00 cerium, instancy particularly defined hy the
c#nwfcon law, >aod/in which certain valuable, and distinguished
ajs^e9,aj»,eppxes$ly.aeklcted and set apart Jor the Kiagv an*
worthy , his < acceptance and necessary to support) and espe*
ctaiiy stable .to. his. royal dignity : as hi the case to£ awanaj
whales; nod sturgeons, g*W and stiver mines, treasure trove*
waifs, es(rays and wrecks, which will be particularly noticed
hereafter, la cases in which the royal right to hm&wacdnHa
is not particularly pointed «a^ the first dclupent or finder

b^nra entttU^a),.

• .It 4m i also worthy of remark, that no judicial determine*
tkttinfevct^r.of the King's exclusive properdin game isrte
be-mrit with: on the contrary there are various <&:/« stnd'de?
fyakms sustaining the principle that gattoe.ie common pro-,
perty (A). So universal a sileaoe on such a point is by no
means a weak argument against this royal claim to an exclu-
sive property 2 nor is it easily, reconciled with 'the admitted
ctocbriue thai hi* subjects may acquits aji exclusive right to
wild aniptala hy *edaj*aing ihem»&e» {a), \li the. King have
thus exclusive, property theee ia no pjtiiwiple for holding that
ifciimy- he.durqsted by the wrongful at t of a third . person, to
which the Crown is. notapauty. i j. . /• • / 1 >r

t>- Therft seems l»,benoinwnfiistenc^ift suppling that though
the King may posaess the right, to go cot/ his subjects? taadato
kill game* and the, pouter in some oases of enlarging and in
<jther» of restraining the e*e*oise of thenatural right to tabs
^ ,st£ljnth? sittyacti may possess ewwrentty ***** the King the
right rof . acquisition Ijy, reducing game into his possession
J&ppt pf th^ (Writers j^ the law of occupancy find a difficulty
WJ&Qn&\ing ,4he usurped apprppriation of wild animals by
any . one exciuweLy, vith . the general freedom of tnaoueapr
tion, given by the laws of nature, and confirmed by the laws

» *

(a) Strange, 505. 1 Bla. Com. 295, -202. Bro. Ab. tit. Propertie. F. tt. BL
295,9. Srbki. 259. 4Burr. 3402.; 197. 1100.81. 4 tet. 303. I^la.
But see Bro. ab Pierog. pi. 12.' Com. 419, note 10, by Christian. Hawk.

(b) See the reference* in 1 CfaiUy on P. C. c.33. a. 29.

Came Laws, 3, note b. Year Book, 17 (c) See 2 Blau Com. 551.

-JEd«.2-53S. Keihcja^ 158. Manw.

6 of

CfcVIIL] ForMs. 1ST

of rxuitiom and ofTeenoa: aid therefor^ in respect to -Afe «i'
chmite proprietor assumed by princes in animd»^^ flartstvr,
they assort. that* the prbsoe csrinotibe catted the a*»er of > sucB .
animals Deface he bath aoteaHy caught them? ** that he who*
Hunts owtatiy *o a r oy al prohihitian doth riot ^commit 'theft*
iwr takeaway Ike goods Jof another; -but OBdyiaoqaiftis-a thiftg
wfafch dnother bad a prisikbe or esttkwroright M*f adqttirbig*
aad . therefore be may be punished ; • betas for the thito£ which
he tints gotanta his'pos*asskRi,iit<o*glU not to.be loobed-eft ae
a matter -of. theft; or te» be <Aalk«gei4iCoordiHgly<(a)i » ,• ••• *
'Ehe-b«tt» opinion seems therefore to be against Sir WiW
Ham Bk^kstone's (doctrtee^ thaA the Jttirtg bias 4be efttfttsit*
property in game (ft). He appears to possess* «tt ottftoui vetfty
wtthnhis anbjec*s>; ' tkmigh from die civil w ftudefc ktrtihe
■my derinte and most] L*rUamJy ^possesses ibe* rigbtr to'/yanf
game franchises -over fats own. or 'bis grantee'sianda.^ jftiritt
beicolieoted.fremliseiIi2Bilntmns^^'tiglA'ef the CtWwfi
to; grant sueht franchises*' that little can be *rgefed from th*
riffht in^fex«>r<rfthis?extended and eorclnsiira property. ■ .. • *
'» A} forest i&deflmdby Manwobd(c) le be "a&evtmn(territ»cr
or ctrcait of woody gr aside «nd pesttfpes* known in jtetaxtads
and privilege^ For the peaceable bring and ebkting of wild
beams and fowls of forest, chase aadiwarreiDV tpbe under -the
i&ingt* pmttectton^ tor-Ws prinoaly ^delight* AsptonisWed <imh
beasts of venery and chase, and gfe*t< covers ^of ^drti, so*
«ncootr ) of the said' tea»M, fo* pw»W*dtio& wfceraflfj therfelare
particular**, iaera, privilege*, and offices; brfonging^thewKbt©^
The 'comtneM^mefft of 4bre4t» may be traced to the Normal
nsnrpatidn, M«totoh'i*tr6diioed the fedddl system; abd"i« wli*
sequence thereof die first Klngsof the Norman line n&t enJy
reserved to themselves thesole anld e^kisi^e property of 'the
antietit forests, btrt *l*d ttretftetf othe^of greater e*teftt* |**-
ticidarfy AeNew Forest in Haito^hifef} taid pkced'them trader
the jurisdiction of particular Courts, and established a variety

(a) Gudelin dejare novissimo, lib. 9. recent debates in the House of Corn-
cap. 2. Vloniiw Ccmro. 2. lib. tit. 1. mons, (Feb. and March 1819,) thfege-
a, 13. «enl opinion on this fubject seems to

(5) See in general, Christian'* note to tare been 'to thfo effect. .
2 Bla. Com. 415. Sdvyn, N. P. 118. (c) Treat, of the Potest Law, «d.

tiL Game. Chitty, G. L. And in the 1*717.

Of

138 Forests. [Ch-VIIL

of officers* for the purpose of preserving the game in those
forests (a).

Numberless oppressive regulations and laws, and amongst
other the assumed right of the King to grant forests, over his
subjects' lands, were annihilated by the charta de fvrextay for
which our ancestors contended as zealously as they did for
magna chart a ^ and Lord Coke contends, that the (Aorta de
foresta was only declaratory of the common law (ft).

Forests were at first in the hands of the Crown only, but
several were gradually conferred by our antient Kings on their
great lords and followers as rewards for their services. And
at the present day it is clear that forests and ether franchises
can only be claimed by grant from the Crown, or by prescrip-
tion which supposes it(c). Twenty years' uninterrupted ear
joyment of a franchise is presumptive evidence in favor of
the claimant (rf). ,

The royal grant of a forest or any other game franchise iflft*
parts to the grantee various peculiar privileges, with respect
to the preservation of game within the districts over which the
grant operates ; and die legislature has frequently interfered
to protect them (e). And it is considered that the owner of a
forest, chase, park or warren is, a* such, independently of
any other qualification, entitled to kill game within! his fran-
chise; though if he sport out of the limits of his district he
will be liable to a penalty* unless otherwise qualified (/).

There are various courts and officers incident to a: forest :
and when a forest is granted by the Crown " am ornnibts in-
cidentibus et pertinentiis," the grantee takes it as a forest with
courts and officers, except the justice in eyre; and dua too
may be granted to a subject by express words (g). If however
those words be omitted, the grantee holds the franchise as a
chase only, though the term forest be applied to it in the pa-
tent (h). And in such case offenders in the forest are punish*

(a) I Inst 100. See 3 Cruise Dig. (?) See Chitty's Game laws.

291. (/) 7 Mod. 482. 1 Chitty's Game

(*) 4 Inst 300. Laws, 41,9.

(c) 1 Ibid. 233, a. (g) Manwood, 159. 4 In*. 314.

(<0 1 Chitty's 6. L. 22, cites 6 East, Com. Dig. tit. Chase, A. 2.

215. 1 Ibid. 199. 11 Ibid. 488. 2 (A) Ibid.
Saund. 115, note 2.

able.

CinVIIL] Forests. 139

able, not by the forest laws, but by the common law of the
land (a).

It fans recently been decided, that there may be a valid cus-
tom in a manor, within the limits of an antient forest belonging
to the Crown, for the lord, with the assent of the homage, to
grant parcels of the waste to be held in severalty by copy of
couit-roll, and inclosed, in exclusion Of persons having rights
of common. And Lord Ellenborough observed, that "He
sjfrrna reason' why the waste might not legally be granted out
in- this manner, although part of the manor were within a royal
forest The Crown may still exercise the same rights of
forest over it as before. Whether the deer be excluded must
depend upon the nature of the inclosures. If the fences
erected are higher than are permitted by the laws of the
forest, • the forest officers may still interfere, and break them
down. According to the custom, the grant is only to the ex-
clusion and abolition of rights of common, not of the rights of
forest And his Lordship said, he knew instances in Wind-
. sot Forest, in which the Crown has made grants in severalty,
reserving the rights of forest, with an advanced rent, while
.these rights shall not be exercised."

As observed in a recent work (6), a purlieu (which is derived
by Lord Ooke(c) from J**"* clear, entire, and exempt, and
lieu, a place,) is land adjoining to a forest, known by meers im-
moveable upon record, and which was formerly within the '
forest, bat was disafforested by tharta dejbreita (d). The pur-
lieu, however, notwithstanding this statute, still continues a
forest, for many purposes relating to game (i), and is privileged
in the protection of deer by various modern statutes (/}. The
land is disafforested as to the particular owners of it, and for
their benefit, and not generally so as to give liberty to every
one to hunt; and if animals escape out of the forest into the
purlieu, the King has a property in them against every one
but the owner of the woods and lands in which they are, and
.such owners have a- special property in them, ratione loci(g).

(a) See Manwood, 49. (e) 4 Inst 303. Manwood, tit Par-

(*) 1 Chitty's G. L. lfc, IT. lieu,

(e) 4 Inst. 303. (/) 3 W. and M: c. 10. 16 Geo. 3*

(rf) Manwood, tit. Purlieu, 242. c. 30. 2 Stra. 1119.

Com. Dig. tit Chase I, 1. (g) Manwood, tit Purlieu.

But

140 Free Ckase.-^Park. [Chilli.

But lv6rd Coke (a) says, that a man ftiay as lawfully lnmt* to
ail intents and purposes, within the purlieu m his own grounds,
as any other owner may do id his grounds that never were
afforested.

4. A Free diase is a right tt> hfonft and kill gairie oVer a c6rtam
district derivable from a royal grant, or immemorial ftsage
which supposes it (6). A chose differs from a forest, property
so called, principally in this respect, that a chase cannot be
subject to the forest laws. It is an unenclosed place (c). And
a man may have a chase in the ground of another as well as in
his own* and the game therein is protected fat his benefit, even
from the1 owner of the laftd(d).' Not that the King has die
p6wer to grant a chase over the lands of a subject "without his
concurrence! or that the sabjgct ean* without the King's' licence,
'make a legal and privileged chase ^verbis owir ground <e%
The right to a chase over another's land- originated from the
grantees of chases selling their estates in aatient fimfes, rfeserr-
ing their rights of chase to themselves (/J. There can, hdw*-
•eVer, be* no doubt, that the King has the prerogative of confer-
ring this franchise over ot&er lands thah those of th£i grantee,
widb the consent of the owner'; though, as observed by Mr.
Cruise (g), it h probable that a chase was never granted tover
*ny grounds^but those whereof die granted 'was himself seized ;
and most of the antieat grAats of frcfe chase and' warren, (of
which an infinite number are mentioned »by Dtigdale in
his Baronage,) are confhied to the demesne lands of the
grantee.

' - The -right io a free chase does not prevent the owner of the
soil1 from cutting timbeV and wood growing upon it, though if
he cut so much that there is not sufficient for covert, and to
maintain the gatnt, the King* or his grantee of the free dhase,
has his remedy (A).

6* A jaori is «a oadosed chase, extending only over a man's

(c) 4 lint. 303. (e) 11 Rep. 87. 2 IwL 199*

(b) ft BUu Com- 38. (/) * BU.Com. 39.

(t) 4 Ibtt. 317,8. Wood's lost. (g) 3 Cruise Dig. 290.

M, 20. 2 tUa. Com. 38. . , (A) SeeCaw of Forest, ISftep. 22.

(rf) Ibid. Com. tNg. tit. Chsj* B. 4 lust. S9S.

own

Ch. VIIL} Fres Warren* fe4i

own ground, to constitute which three things arte teqnired»(rf) i
First, a gram of licence from the King, (and. there can be Ho
doubt the King may confer the privilege at the present day,}
or there most be immemorial prescription ; secondly, fflido*-
sures.by pales, walls, or hedges, though if a legal park, by grant
op .prescription, has laid open for forty years ormovey it jnay
,be revived by enclosing it again, &c (6) ; thirdly, beasts of the
park* such as bucks, .does, &c and, therefore* if there b*a
grant of a park, " excepting the deer/' the exception is Void,^).
And where all the deer are destroyed, the district shall 90
more be accounted a park (d).

Manwood says(e), that in many forests there are. parks
which the owners claim, either by grant from the King, or \>j
prescription. And, if a subject is owner of a forest, itympy
give licence to another to make nnd enclose a pftrk witbifi the
meers of his forest, and to hold the same as enclosed, with' fi31
such venison as .the grantee shall pfct in* to him and his hqrrs.
And this was adjndged a good licence, in a claim made in
JByre ; bufc if *uch park is so slightly enclosed and fenced* that
the wild beasts of the forest do enter, the lord of the forest Vpy,
in such ease, enter and hynt theai at his pleasure.
- Parks as well as chases, a*e subject to the common law, and
are not under the jurisdiction of the forest laws (/);

If any one should erect and assume to passes a privileged
park without AoKingfs licence* Mqw&arra&o may be grafted,
and the 'park destroyed {g). '

6. A Free Watrm is extremely similar to a chase, ao4 is
usually united with it, being a place privileged for the keeping
of beasts and fowls of warren (A), on certain lands, either of the
proprietor of the warren or other person, as in the case of a
chase (1 ). This privilege also can only be claimed from, the

(a) Fee 3 Cruise Dig. 294. 1 Chitty, .233, a. Com. Dig. Chase, F. The
O. LIS, 19. beaata are tare*,' ot>»es, mod does; the

(b) Cro. Jac. 755. fowls arc either eampestres, at part-

(c) 2 Roll's Rep. 876. ridges, rails, and quails; or qhutrti ,
[d) . Cro. Car. 6a as woodcocks aod phoassab r or fua-
(e) P. 294. tiles, as maUatdftan* hewn*. *

(/) 4 lost. 914. (t> 1 Chitty, 0. L, \Q,SQ. . 2 Bla.

<g) 1 Chitty, G. L. IS. Com. 38, 9.

*»>

(A) These are described in Co. Lit.

Crown,

142 Fisheries and Fislt. [Ch.VIIL

Crown (a), otherwise,. a quo warranto may be issued (&)••
As observed by Sir William Blackstone (e), "this fran-
chise is now almost fallen ix^to disregard, the name being now .
chiefly preserved in .grounds that are set apart for breeding •
hares and. rabbits." . Such place any one may erect and pos-
sess; but the royal grant is necessary to confer on it peculiar
properties and protection* It will be noticed hereafter how
these franchises, forests, chases, parks, and warrens, may be
lost

7. Fisheries and Fish. — The King has an undoubted sove*
reignty and jurisdiction, which he has immemorially exercised
through the medium of the Admiralty Courts, over the British
seas, that is, the seas which encompass the four sides of the
British islands; and other seas, arms of seas, and navigable
(but not unnavigable(tZ) ) rivers, within and immediately con-
nected with the territories subject to hia sway (*)•

The law of nations and the constitution of the country have
clothed the Sovereign with this power, that he may defend
his people and protect their commercial interests*

By implicating of law the property in the soil under these
public wafers is also in the King (/). But in this, as in most
other instances, the prerogative does not counteract or interfere
with the natural right of the public to fish in the sea, in arms
of the sea, and in creeks and navigable rivers, and to take fish,
found on the sear-shore between high and low water mark.
This is one of the jura publica or commwria (g), .which never
was vested exclusively in the Crown, and of course is not to be
considered as a regal franchise.

Notwithstanding this public right of fishery, to which the
prerogative of the King is subservient, it appears that the
King or one of his subjects may by prescription or immemo-
rial usage (of which twenty years* uninterrupted enjoyment is

(a) 3 Cruise Dig. 295. (e) Seld. Mar. Hale de jure Maris,

(6) ibid. Com. Dig. tit Chase, D. fcc.

(c) 2 Bla. Com. 39. (/) Post. c. 11. on Revenue.

(<0 These belong to the owners of the (g) Ibid. Hale de jure Mar. p. 1.

adjacent toil. Halede jure Mar. p. 1. c. 4. Hargr. Tr. vol. 1. p. 11. Dar.

c. I. Hargr. Tr. vol. 1. p. 5. Davis'i Rep. 55. 5 Bac. Ab. 498, &c. Willes'

R. 57, a. b. 12 Mod. 510. 4 Burr. R. 265. 2 Bos. and PuJ. 476. .
2164. Selw. N. P. tit. Fishery.

evidence

CiuVIILJ

Fisheries and Fish*

148

evictente(e) ), haw an exclusive right of fishing in an arm of
the sea, or any particular part of a navigable river. For though
the prescription or mage derogate from a public right, yet the
existence of an exclusive appropriation may be grounded on a .
supposition that the inhabitant? of a particular district might .
consent to relinquish a general right for some peculiar advan-
tage of a different, though perhaps of an equal or more
extensively beneficial nature. This 16 generally admitted by
elementary writers (b\ and there are several decisions to the
same effect (c). It seems however that a private right of fishing .
in the sea cannot be claimed under an existing grant from the
Crown, for a grant to support it must be as old as the reign
of Hen. 2., and therefore beyond the time of legal memory* as
the Crown was restrained by King John's Great Charter and by
other charters from making fresh grants of exclusive rights of
fishery, affecting the public privilege (d).

As to the soil or fmdum maris, there can be no doubt it may
be claimed either by charter or prescription, for every prescrip-
tion respecting a franchise generally supposes a grant, which
in this instance could be made by the King, yet it is to be
observed that the soil can only be appropriated sub modo; for,
according to. Lord • Hale, though the dominion either of fran-
chise or propriety be lodged by prescription or charter in a
yet it is charged or effected with that Jus publicum that

su

belongs to aU men(f)» On the same principles the holder of an
exclusive prescriptive right. of fishery in public waters enjoys
it, subservient to die superior and sacred right of the public
to use die arm of the sea or river for the purposes of naviga-
tion (/).

With respect to private fisheries, the presumption of law is,
that the owner of the soil is the owner of the water or fishery;

(a) Ante 138.

<*) See Co. Lit. 113, a. b. and 114.
2 Bl«- Com. 39. Hale de jure Maris,
page 1. c. 4. Hargr. Tracts, 1 vol.
page 1 1 . Schultes. Aqu. Rights, 99, &c
1 Chitty , O. L. 268 to 272. Selw. K. P.
tit. Fishery.

(c) Davy's Rep. 55. 1 Mod. Rrp.
106. 4 Burr. 2162. 4 T. R. 437. 5
ibid. 367. 2 Hen. B. 182. 2 Bos. and

Pul. 472. 1 Campb. 309. 11 East,
263. That a custom to dry nets on the
land of another is good. See 2 Hen.
Bla. 395.

(rf) 2 Bla. Com. 59. 1 Chitty, G. L.
244, 272.

(<0 Hale de Portibns. See also Craig,
lib. 2. dicg. 8. s. 5. 2 Inst. Mag. Ch.
cap. 16.

(/) Ibid. 1 Campb. 517.

nor

144 fisheries awi Fhh. [Ch. YUL

nor i&the grant or licence of tike Crown neoasaary on * party
xaakiog a fish*pond (a).

The King has no general property in fish. It would be
superfluous to specify and particularly designate Whales and
Sturgeons alone, a* being royal fish* if all fish were the King's
property (&)+ ExcepUo prehot regtdmwu With respect how-
ever to whales, and sturgeons, it was always a doctrine of the
common law that they belong to the King (c)» - And by die
statute de Prerogative* Regit (d\ it is declared that the King
shall have whales and sturgeons taken in the sea or elsewhere*
vsftkm the realms except in certain places privileged by the
King. But to give the Crown a right to sueh fish they- muss
be* taken within the seas parcel of the dominions and Crown of
England, or iak creeks or awns thereof; for if taken in the wide
seas or out of tl*e precinct of the seas subject to die Crown of
England, they belong to the taker (e). A subject may possess
this royal perquisite? 1st, by grant; idly, by prescription
within *ta «hore, between the high water and low water
mark, or in a certain ditirictut mart*, or in a port, creek, or
arm of < the sew; s«L this- may be had in gross or as appurte-
nant to an honour, manor m knandf ed'(/).

.Undsr this head map aleo be mentioned the right of the
King to rmans, being inhabitants of itvert (g). By the statute
Si Ed*r. **«. 6. *« no pewion other Aai* the son of the King
shall' have «y mark or game of swans, except he hare lands
e^*rjeelK4dto theyeaivyvAle»effivettork»; #nd if any person
not having lands to the said yearly vahte, shell bar* any such
mwrkor geaae» it shall be lawftil to any of the King's subjects
having lands to the said value, to seize the swans as forfeits,
whereof the King shall fcav* <*n* half and he ih^t shall seize
die other/' A subject may however be entitled to swans:
1st, when they are tame; in which case he has exactly the
same property in them as he has in any other tame animal;
2dly, by a grant of swan mark from the King* in which case
all the swans marked with such ma*k shall be the subject's,

• *

<«) 6 Mod. 183. 2 IntU 199. 1 («) Year Book, 39 Kdw. 3 ; per

Chitty, Q. L. 278. Belknap. 1 Taunt. 241.
{i>) See Schnltes, 15, 16. (/) Hole de jure Mam, e. 1. 1

(c) Brecton; 3 lib. ch. 3. s. 5. Britt. Cbalm. CoU. of Op. 131.
26. b. 7 Co. 16. (f)7Co. IS, 7.

(d) 15 Ed«. 2. c. 11.

wheresoever

Ch.VlIL] Franchises*— Mines. 145

wheresoever they fly; and Sdly, a subject may claim a property
in swans ratiane privilegii^ as if the King, grant to a subject the
gameof wild swan in a river (a).

i

6VA&M*. k is quite clear, that by his prerogative the King
ie entitled to all mines of gold and silver which may be disce-
vered, **t only in his own but even in a subject's fcmds, within
his* dominions (4).

. ; The danger of rendering a subject too formidable, by vesting
in him so immense a treasure as a mine of gold or silver might
aiurd, is the season assigned, for this royal prerogative (*)• But
mines containing baser metal, belong to the subject in whose
lands they are disco vexed (d). It was formerly held, that if soch
mines contained gold or silver, the whole mine belonged to the
King; because gold and silver, being the nobler and move
valuable metals, should attract the less valuable \ and because* a
subject cannot hold property jointly with the Sovereign, and
the King's property, though ever se> small, ought not tabe kftt
by mixture with the subject's (*)• The injustice of such a deo-
Irine called for a remedy ; and, accordingly* it was enacted by
the statute 1 William and Mary, seas* 1. c. S6V s* 4. i« That no
mine oj; copper, tin, iron, or. lead* should be adjudged * royal
mine, although gold or silver might be extracted oat of die
same,," An{l it is further promded^ by th6> statate 5 and 6
Willi Wiand Mprjr* c 6V thai " the4pasei<o£ any mine wherein
any ore shall be discovered,- opened, fonndj or wrought, and m
/which ti*e*e is. copper, tin, iron fox leoA, shall held mnd enjoy
-the same mine «*} ore, and continue mtheposasaaion thbreef,
and dig and work the said mine or ore, notwithstanding that
gush mine or ore shall he pretended, or claimed to be a royal
mine*" .,...?»

" Provided, that the King, and all claiming pnj royal
mines under him, shall have the ore of any such mine, (other
than tin ore in the counties of Devoid and Cornwall,) paying *o
the proprietor or owner of the said mine,.. wherein such -ore
shall be found, within thirty days after the said ore is or shall
be raised and laid upon the banks of the said mine, and before

(a) * 0«. 16, H. (tf) Ibid. 323. 2 Inst 578. 12 Co.

{b) The cat* of Mines; PlowtL 315, J 2.
6. 5 Bac. Abr. 513. I Bla. Com. 295. (e) Plowd. 323, 328, 336.

(r) PJowd. 316.

1 .the

146 Franchises.— Waifi. [Ch.VIII.

the same be removed from thence, the rates following* (that k
to say,) for all ore washt* made clean, and merchantable, where-
in is copper, the rate of sixteen pounds per ton ; and for all ore
washt, made clean, and merchantable, wherein there is tin,
the rate. of forty shillings per ton; and for all ore washt, made
clean, and merchantable, wherein there is iron, the rate of
forty shillings per ton ; and for all ore washt, made dean, and
merchantable, where there is lead, the rate of nine pounds per
ton. And in default of payment of such respective sums as
aforesaid, the owner of the said mine, wherein such ore
shall be found, may sell and dispose of the said ore to his own
use."

" Provided always, that nothing contained in this act shall
alter, determine,' or make void the charters granted to the tin-
ners of Devon and Cornwall, by any of the Kings and Queens
of thtsrealm, or any of the liberties, privileges, or franchises of
4he said tinners, or to alter, determine, or make void the laws,
onstoms, or constitutions of the stannaries of Devon or Corn-
wall, or any of diem."

By the 65 Geo. 3. c. 134. twenty~five pounds per ton, in-
stead of nine pounds, is the rate at which the King may
•exercise the right of preemption of ore in which there is
lead;

. -The King »ay legally grant his right to royal mines, and in
Jthe hands of a subject - they are a franchise ; but such grant
must be in express terms; so that if the King grant to
T. & certain lands, "and the mines therein contained," and
jroyal mines are found in them' they do not pass to the sub-
ject (a).

* • * *

< 9* Fairs and Markets will be considered in the chapter on
4 Commerce*

^ 10. By Waifs Are to be understood, stolen goods which are
waived or thrown away by the thief in his flight, for fear of
being apprehended (6). The goods must be thrown away by the
thief in his flight ; and if he previously hide, or leave them any
where, with intent to resume the possession, so that they were

(a) Plowd. 336. (6) 1 Bla. Com. 296.

not

Ch. VIII.] . . Franchises.— Waffi. 147

not in his possession when he fled, the King's prerogative does
not apply, and the owner is, at all events, entitled to the pro-
perty (a). But the goods waived need not be the identical pro-
perty stolen, for if a fctlon in flight waive his. own goods, and
nhe King seize them, they also are a species of waifs, for they
are relinquished, and the property is in nobody (6). • But these
are properly fugitives goods, and not forfeited, till it be found
before the coroner, or otherwise of record, that he fled for
the felony (c). But waifs vest in the Crown without office
found (d). The King acquires no property in the goods wtkrod
until they are seized by some one to his use ; and if the owner
of the stolen property can seize them first, though at any dis-
tance of time, the King shall not have them («)* - '

This prerogative was given to the King* that the owner of
4he goods might be induced to being the felon to justice tone-
gain them. Therefore, though the property is seized and in
the hands of the Crown, yet the owner is entitled to restitu-
tion, if he used all reasonable diligence in purauing.thethiet
or if he bring him to justice by procuring his. conviction, or
produce evidence which causes it (f). Hence it will be re-
marked, that this royal prerogative is rather limited, and can
only obtain where the party nobbed is guilty of that negtig* noe
and torpitude, which our law reprehends in every instencb,
but move especially in those cases where they jnay. occasion
the escape of villainy tfrom punishment

The goods of a foreign merchant^ though stolen and thtmrn
•away in flight, shall never be waife(£). " The reason whereof,*'
-observes Sir Wra, Blackstone (k\ »?? may be not only lor the
encouragement of trade, but also because there is no. wilibl
default in the foreign merchant's not pursuing the thief, he
being generally a stranger to our laws, 6ur usages, and our
language."

All waifs are primd facie the property of the Crown, and
are not necessarily inpident to a leet (r), though tljey are fre-

(•) 5 Rfp. *<*• O* EL ***. 1 (/) Finch 1* MS. 1 Bin. Com. 806.

Bla. Com. 296. st. 21 Hen. 8. c. 11.. ,

(b) Bro. Estray, 9. 29 Edw. 3. 19. (g) Filz. Abr. tit Eitray, 1 . 3 Bulstr.

(c) Hawk. P. C. 481. B. 2. c. 49. 19.

s. 14. (A) 1 Bla. Com. 296.

(<*) 5 Co. 109. (0 Year Book, 8 Heo. 7. 1. Bro. Es-

(/) 21 Edw. 4. 16. Kitchen. 82. tray, 15.

L 2 quently

148 Franchises.— Wrecks. [Ch.VIII.

quently franchises in the hands of Lords of manors and others.
It is worthy of observation^ th*t though the Lord of a manor
may have waifs by prescription,, yet he cannot have bona.
felontm and fugitivorwn, although a species of waifs, by pre-
scription* because every prescription must be immemorial,
and the goods of felons and fugitives cannot be forfeited
without record, which presupposes the memory of that
continuance (a).

11. By the common law, and as declared by the statute de
prerogative Regis, 17 Edw. 2. statute 2. c 11. the King is enr
titled to wrecks (b). The prevention of the barbarous practice
of destroying persons, who in shipwrecks approached the
shpre, in order to acquire the property shipwrecked, was
the object of the law in conferring this prerogative on the
King^c).

There are four sorts of shipwrecked goods: flotsam, jetsam,
ligan, and wreck, properly so called (d).

Flotsam is- when the ship is. split, and the goods float upon
the water between high and low water mark. ,

Jetsam, is when the ship is in danger of foundering, and
for the; purpose, of saving the ship, the good* are cast into
the sea. ,^ ,,„ ■

Ligan, lagan, or ligftjfo h when heavy goods are thrown into,
the sea with a buoy, ^ so, that the mariners may kpow, where ,to ;
retake theip. These,,arp also the Knag's. if no oivner appear
to daixn them; but if any owner appear he is entitled- to reco*
ver the possession, J For even if they he cast, overboard with-
out ajpy Jo^ark or bifpyv, in order to lighten the ship, the owner
is Apt by this act of necessity construed to have renounced his
property; much less pan, things ligan be supposed to be aban-
doned^ since the owner has done all in his power to a&sert and
retain his property. (ej< ;,,, •

Wreck (properly so called) is where goods shipwrecked #re
cast upon the land; and goods which. are termed flotsam, jet- >
sam and ligan, become and are deemed wrecks if they, be cast
upon the land.

■

(a) Bro. Estray, 13. 5 Co. 109. 43 Ii»t. 167. Molloy, 237. • Moor. 934.
Edw. 3. 16. Nile de jure M«r. 40.

{b) 1 Bla. Com. 290. (rf) 1 Bla. Com. 292.

(c) Cro. Jur. Belli 117, 132, 141. t <*) Ibid.

All

Cli. VIII.} Franchises.— Wrecks. 149

All these species of wreck pritnd jfacie belong to, and were,
originally in, the Crown by virtue of tiis prerogative (a). Being
rights of a secondary nature they may belong to a subject by
express grant or prescription, and are frequently vested in
Lords of manors. If however a subject prescribe ot have a
grant, for wreck only, he shall not have jetsam, flotsam or
ligan(A).

The antient common law as to wrecks, was very strict in
favour of the King; but as the country became more civilized,
mitigations of such severities were gradually introduced ; and
by the common law as laid down by Bf acton, in the ffeigtf of
Henry 3., neither ships nor goods were considered wrtckk' if
there were any sign or mark designating the right tif 'thg
owner, who appeared and claimed them (c). And by ihef $tat. '
3 Edw. l.ci " concerning wrecks of the sea, it is agreed
that where a man, a dog, or a cat escape [quick*] out of th6
ship, that such ship nor barge, or any thing within thetn shall
not be adjudged a wreck; but the goods shall be saved' itoA'
kept bjr view of the sheriff, coroner, [and] the King's bailiff,
arid delivered into the hands of such as are of the town whefe
th6 goods were found; «o that if any sue for those goods and
can prove that they were his, or his lord's, or perished in his
keeping, within a year and a day, they shall be restored to him
without delay; and if not, they shaft remain to the King and
be taken "by the sheriffs, cofoners, [ftnd bailiffs, and shaft be
delivered to them of the town (d) } to answer beforethe justices
of the wreck belonging to the King: And whefe wreck fee-
longeth to another than to the King; he shall have ft' in like
manner. And he that otherwise doth, and thereof be attainted,
shall be awarded to prison and make fine at the King's will,
and shall yield damages also. And if a bailiff do so, and !b£
disavowed .by his lord, and the lord [will' not pretend any tide
thereunto (<?), ] the bailiff shall answer, if he hftve whereof; and
if he have not whereof, the Lord shall deliver the Bailiff's
body to the King." This statute has received a very liberal

construction, for it was passed td check the abuse of the royal

« ...

(a) 5 Co. 106. 6 Mod. H9, peivcur. (d) The translations previous to Pul-

(A) 5 Co. 107. ton read " baiUfi* of thfe town." '
(c) 2 Inst. 167. Bracton, litk 3. fbl. (*) The translations previous to Pol- '•

120. 1 BJa. Com. 291. &c. ton, read *' will not discharge nidi

* i. r> alive. thereof,**

prerogative

1 SO Franchises.— Wrecks. [Ch. VIIL

prerogative to the prejudice of merchants. The act relates as
well to flotsam, jetsam, and ligan, as to wreck, properly so
called (a); and the instance of a dog or cat is only put in the
statute by way of example (£), and therefore in every case
where the owner of the ship or goods caA come forward and
prove his property, the King has no claim to them. Therefore
if a ship be pursued by enemies, and the mariners come on
shore and leave the empty floating ship, which comes to land
without any person in it, yet if the mariners can prove thd
property in the ship, the King is not entitled to it (c). Not-
withstanding the statute, the interest in property shipwrecked
vests in the King or his grantee, even before seizure and
without office found, against all but the right owner (d). The
statute only divests this interest in cases where the owner, of
his executor or administrator, if he die within the year and
day (e), pursues the course pointed out by the statute. The
6wner must therefore apply for the return of his property
Within a year and a day from the time of the seizure of it, by
the persons mentioned in the statute (f). But if he sue for its
return before the expiration of the year and a day it is suffi-
cient, although the verdict be not given within that time, for
the delay of the law must do no man an injury (g).

The King is .not restricted to the year and day mentioned
in the statute, and consequently if the grantee of wrecks take
the King's goods as wreck, the King may claim them after
that period (A).

If goods wrecked be bona perttwa^ the King or Lord may
sell i them, even before the year and day be past ; for the
statute shall not be understood to compel them to keep those
things which of their own nature cannot be kept (i). It
should seem, however, that the produce of the articles so sold
woujd be governed in all respects by those rules which would
have applied to the articles themselves.

Where the King is entitled to wrecked property, he is en-
titled to a right of way over any man's grounds to obtain it (4).

(a) 5 Co. 107. 2 Inst 167. (g) Ibid. 108.

(*) Ibid. (A) 2 Inst 168.

(r) Ibid. Molloy, 239. (i) Ibid. Plowd. Com. 465, 6. 12

(«/) 5 Co. 107. Co. R. 73. Parker's R. 72. Aod Me

(e) 2 Inst 168. Mmc principle, 1 Ventr. 313.

(J) b Co. 107. (*) 6 Mod, 149. ^ Curiam.

" Quarido

Ch ..VI II. ] Franchises. — Est rays.

151

44 Qpando lex aliqmd alicui concedit concedcre videtur et id sine
quo res ipsa esse non posset"

It may also be worthy of observation that the King may by
the statute 27 Geo. 3, st. 2. c. IS. seize goods taken by pirates
where the property is unknown, and detain them until proof
of property is made ; and if they be perishable goods the King
may sell them, and, upon proof, restore the value (a).

12. Estrays are such valuable animals as are found wan-
dering in any manor or lordship, and no man knoweth the
owner of them ; in which case, says Sir Wm. Blackstone, the
law gives them to the King, as the general owner and lord
paramount of the soil, in recompence for the damage they
may have done therein (6); and they now most commonly be-
long to Lords of manors by special grant from the Crown.
Kmn&lsfera naturfy and those on which the law sets no value,
cannot be estrays: that term only including, in legal consider-
ation, such beasts as are by nature tame or reclaimable, and in
which there is a valuable property, as sheep, oxen, swine, and
horses, which we generally call cattle (c); and with respect to
fowl, only swans may be estrays (d). The reason of which
distinction seems to be, that cattle and swans being of a re-
claimed nature, the owner's property in them is not lost
merely by their temporary escape ; and they also, from their*
intrinsic value, are a sufficient pledge for the expense of the*
Lord of the franchise in keeping them the year and day (e).

In order to vest an absolute property in the King, the
estray must be proclaimed in the church and two market
towns, next adjoining to the place where they are found, and*
it* no one claim them after proclamation and a year and a day-
passed, they belong to the King without redemption (/); even
though the owner be a minor, or under any other legal inca-
pacity (g)> If the proclamation be irregular, the owner is
entitled to restitution at any distance of time (h). Notwith-
standing the proclamation, the King's interest in the estray
does not become vested or indefeasible, until the expiration of

(*) 12 Co, 73. Parker's R. 72.

(b) I Blm. Com. 296.

(e) Ibid. 297.

(rf) 1 Rep. 17.

(e) 1 Bla. Com. 296.

(/) Mirror, c. 3. s. 19. 1 Bla. Com.
297.

{g) 5 Rep. 109. Bro. Abr. tit. Es-
tray. Cro. El. 716.

(h) 1 Rol. Ab. 879.

the

152 Franchites^-Trertw* Trove. [Ch/VIIL

the year apd day, but his Majesty bag a property in it by
possession thereof, within the year and day, against all but)
the right owner (a). If however it wander again within that
period, and, a subject who is entitled to estrays (which- he. may:
be either .by the^joyal grant or by prescription, which supposes
such grant (6), ) seize it, the King has no claim (r). The
right of the subject to seize Jn such case, clearly proves that
the property in the estray was not completely vested in the
Sovereign, for it .is laid down as clear law that no one can
take the King's beasts as estrays (<£)•

The Jtingor fris grantee should, so long as the estray is in
his possession, feed and preserve.it from injury (e), and can*
no( leg*!},? use it by way of labour (f) ; though, it seems, that
he may milk a cow, which is an estray, or do any act of a simi-
lar nature, which tends to the preservation and benefit of the
animal, and> consequently, to the advantage of the owner (g).
If the owner reclaim the estray, he musiy it seems, pay the
charges of finding, keeping, and proclaiming it (h); and though
an unreasonable sum, by way of compensation for expenses,
incurred, be demanded, yet if the owner do not tender suf-
ficient amends, the detainer of the estray is lawful (i)«,

1 3, Treasure irovey is where any gold or silver in coin* plate, .
or bullion is found concealed in a housef or in the earth, or
other private place? the owner thereof being .unknown* jp whjch
case the treasure bejongj* to the Kir^ or . hb ^raiite^ having (
the franchise of treasure trove ; but if he that laid it be known
or afterwards discovered, the owner and not the Kiqg is enti-
ded to j t ; thi^ prerogative right only applying in the absence
of an owner to claim ^he property (£). If the owner, instead
of hiding the treasure* casually lost it, or. purposely parted
with it, in such a manner that it is evident he intended to
abandon the property altogether, and .did. not purpose to re*

(«)Yelv,96. ($) Ibid. 148. Noy. .119.

(*)S«r441Sdw.5, 19. 3 Oil 1 1X5.* (*) tH\t. Sheriff, 79. 1 Itol. Abn

Kitch. 80, 2. 5BacAb. 517. . 879. 1 Bla. Com. 297. See 1 Hen.

(c) Finch L. 177. ' 1 Bla. Com. 298, Bla. $54. .

<rf) Year Books, 44Edw. 3. \il' 5 (0 1 Rol. Abr 87$. pi. 5. See Bro. '

Co. 105. 1 Rol. Abr. 888. Kit eh. 80: Ab. tit. Estray and Waif, pi. V 44

5 Bac. Ab. 517. tit. Prerogative, B. 9. Edw. 3. 14.

(r) 1 Rol. Ab. 889. (*) 3 Inst. 1 52, 3. Dalt. of Sherifls,

(/> Oft Jaa 147. c. 1 6. 1 Bla. Com. 295.

stune

ChJVIIL] Franchises^Deodands. iSSy

some it on another occasion, as if he threw it on the ground, *
or other public place, or in the sea, the first finder is entitled '
to the property, as against every one birr the owner, and the
King's prerogative does not in this respect obtain (it). Sb
that it is the hiding, and not the abandonment, of the property
that entitles the King to it

It is the duty of every person who *finds any treasure, fo! •
make it known to the coroners of the county; The punish- "
ment for concealing it is fine and imprisonment (6). ' -

» /»

14. By Deodands, which are also in general a franchise fit
the hands of lords of manors and others, are to be understood '
either aniihals or inanimate things, which occasion tfe death
of a human being, and these are forfeited to the King or his
grantee*

Hie superstition of former times designed them to be used ''
as an expiation for the soul of the deceased, arid in later :
times they were to be applied by his Majesty's almoner to : *
pious uses (c). The forfeiture is rational, so far as it strength- w
ens the natural sensations of the mind at the sudden destruc- "'
tion of human life. ,-.'.:

The rule is, that omnia qua movent ad mortem sunt deodqnda :
the forfeiture extends not merely to the article which more.iinT
mediately occasioned the death, but also 'to such tltfhgs as con- xo
tributed, though remotely, to it, or tendered the wound more v
danger 6us (tf). Thu^iffc cart' run over a person andltfll hitni '"**
not only the cart but the ftiggage, &c. are forfeited, though*
the wheels were the more fthmediate cause of the fetal eveht( e): ™
But a thing which1 in no respect contributed to 'the death is J
not forfeited, though annexed to an article which occasioned
h ; and, therefore, where a person falls from the wheel of aj '
carriage, which is not in motion, the Wheel only is forfeited (/). /
So, if a man fell from the shafts of a waggon on which he was '
riding, the horses and waggon only are forfeited, and not the
loading (g). And if a. man riding on a horse over a river is >

(a) Britton, c. 17. Finch L. 171. 1 (d) 1 BU. Com. 301.

BU. Com. 295. See Stnu 505. (e) Salk. 220. .

(*) 3 In*. 133. 1 BU. Com. 206. (/) 3 Inst. 58.

(c) 3 Inst. 57. 5 Co. 1 10, b. 1 BU. , (g) Ibid.
Com. 299.

6 drowned,

154 Franchises.-~Deodands. [Ch.VIII.

drowned, through the violence of the river, the horse is not
forfeited, because, not that but the -waters caused his death (a) ;
but the horse would be forfeited if h threw its rider into the
river (i). The forfeiture is incurred in the case of a person
felling ftom any thing standing still ; nor is it material whether
the owner was to blame or not (cj. It appears to be now set*
tied, that things fixed to the freehold, as the wheels of a mill,
or fo*ge, or bells hanging in a steeple, &c. by becoming en-
tangled or caught in which a man loses his life, cannot be deo-
dands (d). And it was always considered, that the forfeiture in
these cases takes place at land only, and does not extend to the
seas, where accidents are so frequent (e); though it is laid
down* that a ship, from which a person falls and is drowned
in fresh water, is forfeited {/).

A forfeiture may take place of an article which occasioned
the death of a person within the years of discretion, by running
over or falling on him, but not, it seems, in case he falls
from any thing not in motion (g).

The death of the unfortunate sufferer, within a year and a
day from the time he met with the aocident, is necessary to vest
the deodand in the Crown, or his grantee ; and if he die after
that period, the larw concludes that he died from some other
cause, and will not, it should seem, admit evidence to the con-*
trary(A). If he happen to die within a year and a day, the
article becomes a deodand, by relation back to the time when
the wound was received, and no intermediate alienation of it
can bar or prejudice the King's claim (i ). However, nothing-
is forfeited, or can be legally seized, as a deodand, until it be
found by a coroner's jury to have caused a person's death ;
but after the inquisition, the sheriff is answerable for the value
of it, and, therefore, the inquest ought to find the value (k) ;

(<t) Cro. J««. 483. 2 Rol. It. 23. Com. 301,2.

Poph. 130. (/) Ibid.

(4) Salk. 220. (g) See 1 Bit. Com. 300, 2 ftac. Ab.

(c) 1 Bla. Com. 301, 2. tit. Deodand*. 2 Keb. 719, 806. And

('/) 2 Bac. Ab. 293, tit. Deodands. see Hawk, ubi supra. Hal. P. C. tit. Deo-

Sid. 204. Lev. 136. Kaym. 97. Keb. dands. Sed vide Staundf. P. C. 21.

723,-744. 6 Mod. 187. 1 Hawk. P. C. (h) Hawk, ubi supra. Bac. Ab. tit.

1 61 , &c. B. 1 . c. 26. Stra. 6 1 . Deodand.

(0 3 Inst. 58. Hal. P. C. 423. (») Ibid.

SLaundf. P. C. 20, b. and 21. I Bla. (*) Ibid. 5 Co. 110, b.

and

Ch. IX. Sec.L] Farms Itetofa*--Infitol$. ISS

and in default <*f tfteit- doifeg <*S the hKfiteHkHk tMhnrjt be to«
Iteri by the grand jury unde* tlfclr general charge frdni the
Judge of Assize (a). It seems, however? that on the coronet's
rMftdt, It ttay be taken by the Justices of Oyer and Terminer,
or of the R&ce, or Of the King's Bench (ft). Thtee inquisi-
tions appear to be traversable (<?).

Thk forifeteufe might, if strictly enforced* be rutnOtfft to an
ifliHfcent ^dividual, and being founded on the stoperetitfon of
darker ages* it had been gradually discountenanced. The
coronet's jury usually find the value of the article to be ad small
as possible, and sometimes find the value of a part only of 4n
entire article occasioning death } a pmctice which the Court of
King's Bench have tadtly sanctioned, by refusing to reform it,
on application by the Crown or its grantee (rf).

CHAR IX.

Of the King as Parens Patriae.

Sect. L—As to Infants^ Idiots% and Lunatics.

The King is in legal contemplation the guardian of his peo-
ple ; and in that amiable capacity is entitled, (or rather it is
his Majesty's duty, in return for the allegiance paid him,) to
take care of such of his subjects, as are legally unable, on ac-
count of mental incapacity, whether it proceed from 1st. non-
age : 2. idiocy : or 3. lunacy : to take proper care of them-
selves and their property (e).

1. This superintending power over infants was originally in
the King by the common law, and was by his Majesty dele-
gated to the Lord Chancellor, who seems to exercise it as a

(a) 1 Burr. 17. (<?) Staumlf. Prerog. 37. 2 lost. 14.

(6) Ibid. 2 Hale, P. C. 5*. 4 Co. 12, b. Bac. Ab. IdioU, C» 1

(c) Ibid. 19. Bla. Com. 463. 1 FonbL.Tr. Eq. 3 ed.

(d) Foster of Horn. 266. 1 Bla. Com. 52 aod 53. 2 Ibid. 223, 227, note (a).
30*. 2 Ba/nardntoa's K. 82. 3d cd.

branch f

156

Pat*** Patti**— Infants. [Ch, IX. Sec. I.

branch of his general jurisdiction (a) ; and 110 separate com-'
misflian is necessary to legalize the chancellor's jurisdiction in
this respect (6)*

L By virtue of this power the chancellor may appoint guar*-
diensto s?ch infants a* are without them(c). And though
his. lordship cannot remove a testamentary guardian appointed
accoidingjtotha statute, or consider his misconduct a con*
tempt, unless the infant be a ward of court (d) ; yet he may
impose restrictions which will prevent such guardian from pre-
judicing the interests trf his award (e). And- it seems to be
admitted that guardians at common law may be removed or
be- efrnpeUed to giye security if there appear to be any danger
of <their abusing either die infant's person or estate (f). It is
aba a general rule that if. a person, appointed guardian be at-
tainted* or otherwise become incapable, the trust devolves on
the great seal, as the general guardian of all infants (g). The
care o£ infants is so peculiarly a prerogative of the Crown,
delegated to and exercised by the Court of Chancery, that k
has also been hud. down that the Court may interpose even'
against that authority and discretion which a father has in
geaerai in the education and management of his child (A).
Though perhaps in this case it is necessary that such child
should be a Yard of the Court (1 ).

The Chancellor may,, generally speaking, cause the per-
formance of any thing essential to the welfare or benefit of
infants abd their properties (*); and will protect their rights.
Therefore if a man marry a ward of the Court without the
consent of the Court, lie shall be committed for such contempt,
thtMlghit appear that he knew not that she was a ward of the
Court (/) ; and there must be a proper settlement made on the

(4) See -tbidF. I Poobl. 227, 8, note,
10 Ye* 59. Se* bower .0» lift. 88, b.
note (16). Hargr. K. B. ha* no part
of the delcgalfdfowef o*w infant*. 10>

Ve*,$9f

<*) ibid.

(<) Bac. Ab. Guardians, C 2 Fonbl.
235, 3rd ed.

(</) 2 P, Win*. 561. See next note.
CO 2 Ch. Cas. 237. 1 Vex. 16XX 1
Vers. 4*2. Dick. 88. 2 FoubL Tr.

Xta). 230, note (a), 3rd ed. and 235, 6.

(/) Ibid. 1 Bla. Cum. 463.

(g) 1 P. Wow. 706.

(A) Ibid. 702. Other caaes cited, 2
Fonbl. 230, note.

(t) See Ibid. 4 Bro. Ch. Rep. 101,
102.

(*) See 2 Foribl. 230, note.

(/) Hecfeert't Cate, 3 P. Wnw. 1 16.
Butler p. Frartnan, Ambl. 303. Cha*»
niqg o. Parsonage, 5 Vei. 15.

wife

Ch. IX. Sec. 1.1 Par*** Patrke.-'Idiotu ldT

wife before such contempt can be cleared {a). So the Coon
will allot maintenance to infante out of their fortunes- suitable
to their rank and circumstances (6). But though it is one of
the. peculiar duties of a Court of Equity to protect the rights
of infants, still it will not at any period or under anycircun**
stance* act upon such indulgent disposition; and therefore
even in equity an infant may be bound by the statute of. limit
tations(c).

On the other hand the Court of Chancery wttt assist guar*
dians in compelling their wards to obey their legal ■ deabetw
Therefore where an infant went to Oxford contrary to the-
orders of his guardian, who wished him to go to Cambridge^
the Court sent e messenger to cany him iromOxfoed to dattw
bridge; and, on his removing to Oxford, another messenger
was sent to carry him to Cambridge, and keep him ther»(jty~

2. The superintendence of idiots, who are pertfsns dttpia)
of understanding from their births, and are presumed never
likely to attain any, is also rested in die King, not however
it seems by the common law, but by statutes few the benefit of
the subject on the party being found* an idiot by a jury of
twelve men on the old common law writ de Moid MfnJt
rendo(e).

The statute 17 Ed. 2. st 2. c. 9. provides, that the King
shall "have the custody of the lands," (awA according id many
books* "of the person, goods and ehattphf'!(/) ), ef natural
fools; taking the profits of ahem wbhoot waste and destrttei
tion(g)» and shall find theih their necessaries} ef wbeee^*e
soever the lands be holdcn^ and after the doath^s^icb tdtatir
his Majesty shall render them to the right hens, <sn that, by
such idiots no alienation shall be made* nor shall thai** heirs
be disinherited.

This . statute- is not introdqetive of a new right of tho

Crown (A) ; though it is certainly doubtful whether the prero-

• * '

(a) 1 Vet. Jon. T54. (/) 4 Co'.MG.HS. F. N. ft. 2321

(b) See 2 Foobl. 232. note, (g) Which wordt " warte and. de-
(<?) Free. Ch* 518. 1 Funbl. TV. Eq. ttruction" mint be construed in their

Srded. 159, note. ordinary not tbeir technical' tente. t

(<0 Stra. 16*. 3Atk.*m.# Yea, Jan. 71.

(e) F. N. B. 232. I Bla. Com. 903. (A) 4 Co. 126. ' Bac. Ab. title tdloU,

HuShVv. Burton, TV 1TO5. 1 Ridfrw. C. 1 Bla. Com. 303. • **

P. C.224; 519,335.' x : :: *' "

* • •- gatire

158 Parens Patrte.*-~IdiQts. [Ch, IX. Sec J.

gafcve in' question was not obtained by some previous non-ox-
isting statute (a). It is clear thai antiendy due custody of
idiots and their lands was vested in the lord of the lee (4);
(and therefore still, by special custom, is some manors the
lord ahaH hare the ordering of idiot and lunatic copyholders (c);)
but by reason of manifold abuses of this power by subjects, it
was at last provided by common consent, that it should be
given to the King, as the general conservator of his people;
in older to prevent the idiot from wasting his estate ; and re-
ducing himself and his heirs to poverty and distress (d).

This prerogative is generally, but not necessarily, exercised
by the person who has the custody of the great seal. It
may be delegated to any other person (e) ; and even when
granted to the Chancellor, as it almost universally has-been, a
special authority, under the royal sign manual, seems necesr
eary j for such authority does not appear to form a part of the
Chancellor's general jurisdiction (/). This warrant confers *o
jurisdiction, but merely a power of administration ; and if that
power be abused, or any erroneous order to be made under it*
the appeal is not to the House of Lords, but to the King in
Council (g).

Where the persons of idiots or lunatics are amenable to the
Chancellor's jurisdiction, the circumstance of their property
being out of the jurisdiction is not material (*) ; i»* - is the
jurisdiction lost merely by their being 'abroad (i% for the jury
may be satisfied of the party's state of mind wiAout a# inspec-
tion ; and a person found a lunatic by a oompetent jurisdiction
abroad, may be cbnsidered a lunatic here (k). As an idiot's
tetovery is, in legal contemplation, as well aa hi point of fact,
improbable, the guardian under the King's authority is more
than a bailee (Q, and may make grants from lame to time of
the idiot's property (»). And, though the point has been

(«) See 2 Inst 14. Fleta, page 6, (g) Ibid. 2 Vea. Jon. 7, 78. 3 Atk.

sect. 10. Bac. Ab. title Idiot*, C. 635. 6 Bro. P. C. 329- 1 Fonbl. Tr.

(b) FJeta, L 1. c 11. «. 10. x Eq. 55, note, 34 ed.

(c) Pyer, 302. Hutt. 17. Noy. 27. (A) Ambl. 80.
(<f) F. N. B. 232. 1 Blm.Com. 303. (t) Ibid. 139.

(e) l Bla. Com. 303, and next note. (ft) Ex parte Gillam, 2 Ves. Jun. 588.

(/) 3 P. Wins. 108. 2 Atk. 553. 2 (I) 1 Fonbl. Tr. Eq. 3rd. ed. 56, 57.

Ponbl. TV. Eq. 228, note, 3d ed. Bac, (p) 3 Atk. 635, 1 Foubi. 5$,

Ab. title, Idiots, C.

doubted,

Ch.IX.Sec.L] Parens P*tri*.*~ Lunatics. 169

doubted (a)# it teems that die gnat of the custody of an idiot
and his lands, may be made to extend to the representatives of
such grantee (b).

3. The King is also guardian of lunatics ; and his Majesty's
authority in this respect generally is aad may be delegated to
the Lord Chancellor or other person, in the same manner as
that relative to idiots is delegated. An important distinction
between the ease of a lunatic and that of an idiot, grounded on
the consideration that a lunatic's disorder is supposed to be
temporary only, should be remarked. Under the expectation
that the disorder of the lunatic's mind may be removed, the law
constitutes the Crown merely a trustee for the unfortunate
persons; to protect their property, and to account to them for
all profits received* if they recover, or after their decease to
their representatires (c). It is therefore declared by the stat.
17 Edw. 2. c 10. (which is said not to be introductive of any
new right of the Crown(rf) ), that the King shall provide for die
custody and sustentation of lunatics, and preserve their lands
and the profits of them for their use, when they come, to their
.right mind; and the King shall .take nothing to his own use.
And if the parties die in such estate, the residue shall be dis-
tributed for their souls by the advice of .the ordinary, aad of
course (by the subsequent amendments of die law of admini-
stration) shall now gp to. their executors, or administrators.
On .the same principle, it has been decided that the King
cannot grant the custody of the body and lands .of a lunatic to
a person to take the profits to his own use (<?).

The custody of lunatics in private nad*hou*es is regulated
by legislative provisions (J\ which do not however in <a»y way
affect the royal prerogative. Though the King has in general
the sole management and superintendence of persons of un-
sound mind, yet any one may confine or otherwise restrain any
madman where it may be necessary {g\ Where the royal
authority for the custody of a lunatic is required, or where the
production of a person suspected to be non-compos is enforced

(<0 1 Vera. 9. (d) 2 Vet. Jun. 11. £a& Ab. title

(6) 3 Mod. 43, 4. Skin. 177. pi. 7, 5. Idiot, C.

4 Ibid. 171. 3 Bac Ab. 530, title (*) Moor, 4, pi. 12.

Idiots, C 1 Fonbl. Tr. Eq. 55, note. (/) 1 4 Geo. 3. c. 49. 26 Geo. 3. c.

(c) 1 Bla.Com.304. 91.

(g) 2 Rol. Ab. 546.

by

1 60 Parens Patrice. — Lunatics. [Ch. IX. Sec. h

by the authority of the Court of Chancery (a), the Lord Chan-
cellor, to whom this prerogative is generally entrusted, by
special authority from the Crown (ft), on petition or informa-
tion, grants a commission in nature of the writ de idiota
inquirendo, to inquire into the party's state of mind. If he be
found non-compos, his Lordship appoints (c) some friend or
relation, not being the next heir of the non-compos, to take
care of him (d). An allowance suitable to the circumstances
of the unfortunate individual will be granted; and if neces-
sary, the Court will even allow the whole of the yearly value
of his property (e). The greatest care is to be taken of the
property ; and generally speaking, the Court will order any
measure conducive to its improvement(y). But the person to
whom the cava of the lunatic is confided, cannot in general, of
his own authority, do any act affecting his property; as he
possesses a mere authority without an interest, and is nothing
' more than a mere bailee (g) ; nor should any thing be gained
by him from the appointment (A).

It is the prerogative of the Crown to avoid, by scire facias
or information, the engagements and acts of idiots and luna-
tics, during their incapacities [i\ However, the King's right
to the mesne profits has relation only to the time when the party
was found to be of nonsane mind (A). Any abuse of idiots or
lunatics, as, for instance, by taking them out of the custody of
the persons appointed to take care of them, or marrying them,
is considered a contempt of the Court of Chancery (/).

In genera], the Chancellor's guardianship is determined by
the death of the idiot or lunatic (»), though his Lordship may,
it is held, make an order in their affairs after their deaths (n).

(a) 1 P. W. 781. 2 Ibid. 638. Bac. Ab. title Idiots, C.

(*) See ante 158. 3 P. W. 108. (a) 8 Ch. Cat. 339. Ambl. 78.

(c) See 1 Fonbl, 56, 7. note, 3rd ed. (t) 4 Co. 184.. F. N. B. 832. 1

(d) 1 61a. Com. 305. Co. Lit 88, Fonbl. Tr. Eq. 3rd ed. 55 note,
b. n. 6. 1 Fonbl. 57, n. (A) 8 Co. Rep. 170, a.

(f) 3 P. W. 110. 8 Ibid. 868. 6 (f) PrecCh.803. Bq. Cat,- Ab. 878.
Vea. 8. ante, 156.

ff) Ambl. 706. 1 Fonbl. 59, 60, («) 4 Co. 127, a.

(g) Vera. 262. 1 Fonbl. 56, 58 and (n) Ambl. 706. Br©. Ch, R, 138.
59, notes, 3rd eo% 2 Wjls. 130, 2«

SECT,

Ch. IX. JSecu II.j Parens Patri<e<~~Charities. 161

SECT. II.

A* to

Sie William Blackstonb (a) observes, " that the King, at
parens patruz, has the general superintendence of all charities,
which he now exercises by the keeper of his conscience, the
Chancellor. And, therefore, whenever it is necessary, the
Attorney-General, at the relation of some informant, (who is
usually called the relator, J files, ex-qfltcio, an information in
the Court of Chancery, to have the charily properly establish-
ed." On this proposition, Mr. Fonblanque (b) remarks, that it
is too general, for though it be true, that where a charity it
established, and there is no charter to regulate it, as there must
be somewhere a power to regulate, the King has, in such case,
a general jurisdiction; yet, if there be a charter with proper
powers, the charity must be regulated in die manner prescribed
by the charter, and there is no ground for the controlling in-
terposition of the Court of Chancery (c). The interposition of
the Court, therefore, in those instances in which the charities
were founded on charters, or by Act of Parliament, and a vi-
sitor, or governor, or trustees, appointed, must be referred to
the general jurisdiction of the Court, in all cases in which a
trust conferred appears to have been abused, and not to an
original iHjght to direct the management of the charity, or the
conduct of the governors or trustees. A distinction Mani-
fested by those cases in which the Court has refused to inter-
pose its opinion against that of the governors of a charity,
having a right, by the terms of its foundation, to exercise their
discretion in certain particulars (d). It is, however, the gene-
ral right of the Court of Chancery, derived from the King, to
appoint to what charity any gift shall be applied, where die
donor does not name any particular charity (*). And, as al-
ready mentioned, by statute 1 Edw. 6. c. 14., gifts to certain

(a) 3 Com. 427. 2 Ves. Jun. 42. Attorney-General v.

(b) '2 FonbL Tr. Eq. 206. n. a. Middleton. 2 Ves. 927. But see

(c) Attorney-General c. Middleton. Gower p. Mainwaring. 2 Ves. 89.

« Ves. 3*8. (0 1 Vera. 224. 2 Freem. 961. 1

(J) See Attorney-General v. Found- Bro. Gb. R. 15. AmM. 712.
Knf Hospital. 4 Bro. Ch. Rep. 165.

super-

162 . Foreign Commerce. rCh.X.Sec.I.

ro

superstitious uses therein enumerated, are declared to vest in
the Crown ; but other gifts, not included within that enumera-
tion, neither vest in the Crown nor in the heir, but shall be
appointed to such uses as* the King shall order (a).

CHAP. X.

Of the Prerogative as to Commerce.

Sect. \.-«-Foreign Commerce: Freedom of, and ham far under
royal Controul. — Consuls. — Dispensations by Licences, and
Orders in Council, from the Effect of War on Commerce, %c.
— Prohibitions. — Embargoes. — Declarations of Contraband,
Sfc. — Sovereignty over the Seas.— Ports and Havens. — Beacons
and Light-houses.

The protection of foreign and .domestic commerce was, even
in the most antient times, a favorite object of the English
laws; As is strongly instanced by the provisions in Magna
Charta, c. 30., and subsequent enactments, respecting the
freedom of alien merchants. And in the time of King Athel-
stan we find a very remarkable law, which says, that any mer-
chant who has made three voyages upon his own account,'
beyond the British channel, or narrow seas, shall be entitled
to the privilege of a thane (&) : " et si mercator tamen sit, qui
per trans altum mare per facultates proprias abeat, ille postea
Jure thani sit dignus."

It would of course be irrelevant to enter into a detail or ex-
planation of the lex mercatoria. Its objects, and the princi-
ples and policy on which it is founded, are of a complicated
nature ; and the numerous regulations respecting trade to be
found in our statute books would fill volumes (c).

Our foreign commerce is principally regulated by a variety
of statutes; and chiefly by the Navigation Act 12 Car. 2. c. 18.;

(«) 1 Salk. 162. (c) See Pope's work ; and Chitty, ow

(*) Wilkint, Angl. Sax. Leg. Jndicia " Commerce" and " Law of HafSbna,"
Curtate. Load. p. 71.

the

.Ch. X. Sec. I.j Foreign Commerce. 1 65

the object of which was to extend, consolidate, and strengthen
the maritime pow'er of the country by confining our foreign
trade, as far as was c6nsistent with the extent of it, to the
shipping and mariners of this country; and, in order to ac-
complish that object, to hold out peculiar privileges and im-
munities to the mariners and shipping of Great Britain ; and
to prohibit, under severe penalties, the communication of these
immunities to the shipping and mariners of foreign states (a).

As these statutes contain comprehensive and positive enact-
ments which bind the Crown (A), it may be laid down as a
general rule, that the King does not possess any general com-
mon law prerogative with respect to foreign commerce. The
King is called by Sir Wm. Blackstone (c), " the arbiter of
commerce :" a term which would be somewhat loose, as stated
by Mr. Wooddeson (d), if it were applied to general com-
merce ; but which appears to be extremely applicable to the
King's authority with respect to domestic trade : in which sense
only it is used by Sir Wm. Blackstone. A general discreti-
onary power of restraining, regulating and superintending
foreign commerce is not assigned by the common law to the
King. His prerogatives on this subject are by no means so
extensive : for the affairs of general commerce relating to sub-
jects of independent states are regulated by statute law, and
by the lex mercatoria which the European nations agree to
observe*

The freedom of trade and the general inability of the King
to restrain it, or to exercise any discretionary power on the
liberty of the subject in this respect, by virtue of his common
law prerogatives, and independently of any legislative author
rity, appears to be clear both on sound constitutional princi-
ples and from authorities of the first weight and charac-
ter (e ).

In the first place the provision in Magna Charta, ch. 30.,
extending the freedom of trade to foreign merchants, strongly
proves that the English had this liberty before : otherwise they

(a) 2 Smith, W. N. $12. Beaw. Lex (e) 2 Inst 57. Hale de Portibu*
Merc. 16, 17. Chitty, L. of Nat. 200. Man*. Pref. to Hargr. Hale, Tracof

(b) 12 East, 296. vol. 1. p. xxx. Com. Dig. Trade, D. 1.

(c) I Com. 273. 4 Bac. Ab. Merchant, 595.

(rf) 1 V. L 80.

m 2 would

1 64 foreign Commerce. [Ch. X. Sec. 1.

would not have extended it to aliens, and left themselves
without it.

In the second place it is declared by many Acts of Parlia-
ment; and particularly by the statute 18 Ed. 8. at. 2. c. 3. ;
" que le mere soit avert3 " that the sea shall be open to all
manner of merchants to pass with their merchandise (where it
shall please them)."

" All merchants, strangers and denizens, or any other may
sell corn, &c. and every other thing vendible to whom they
please, foreigners or denizens, excepting the King's enemies,
and any charter, proclamation, allowance, judgment, &c. to the
contrary shall be void (a)."

Again if it be necessary, the various statutes which have
been expressly made for the purpose of preventing the im-
portation or exportation of particular articles, might 'be used
*s an argument against this power of the Crown. The em-
bargo which was issued by his Majesty to prevent the expor-
tation of corn in 1766, is noticed by Beawes in his Lex Mer-
catoria (6), as having been illegally imposed ; such exporta-
tion, says he, being allowed by law at the time ; and therefore,
the preamble to the statute 7 G. 3. c. 7. for indemnifying all
persons advising or acting under the order of council, laying
an embargo on all ships laden with corn or flour, during the
recess of Parliament in 1766, says, " which order could not
be justified by law, but was so much for the service of the
public, and so necessary for the safety and preservation of his
Majesty's subjects, that it ought to be justified by Act of Par-
liament." This embargo, as was allowed, saved the people
-from famine ; yet it was declared illegal by the above Act of
the legislature, including the King himself, who laid it, which
•was therefore needful to sanction it : and the proprietors of
the embargoed ships and cargoes were accordingly indemnified
by government Here there is a legislative declaration what
the law is on this subject

It is on this principle also that embargoes which occasion
a suspension of commercial intercourse, are not legal at com-
mon jaw, except when they operate for the public good and

(«) 9 Ed. 3. c* 1. 25 Ed. 3. c 2. 11 Prdmce, m. Chitty, L. of Nat. 72.
Rich. 2. c. 7. See alio ante, ch. 7, as to Prodama-

{*) Page 276. See Haryr. Law Tract*, taonf.

safety ;

Ch. X. Sec. I.] Foreign Commerce. 1 65

safety; being used in time of enmity and threatened hostilities
and on an emergency, and not for the private advantage of a
particular trader or company (a). Nor can a civil embargo,
that is, an embargo which is employed in the case of allies and
subjects, be imposed upon British ships in a foreign port, un-
less by the concurring authority of the state to which
that port belongs; for the King has no right to disturb the
peace of other nations, by any seizures, however useful to
the interests of his own people. This may be collected from
die judgment of Sir William Scott, in die case of the
Gertruyda (&}•

In 1721, on the occasion of ships of war being built by
English subjects in England for the Czar, which was com-
plained of by the King of Sweden, the Judges were of opinion
that the King could not prohibit the same (c).

Lord Hale does indeed in his treatise de partibus Maris (d).
consider this question very cautiously; and, with his usual
diffidence on doubtful and important constitutional subjects,
avoids giving a decided opinion : but it is tolerably evident
what his sentiments were. He concludes (e) by observing,
*' that upon the whole matter, it will appear from the several
Acts of Parliament that have been made for the support and
increase of trade, and for the keeping of the sea open to
foreign and English merchants and merchandise, that there
is now no other means for the restraint of exportation or
importation of goods and merchandises in times of peace, but
only when and where an Act of Parliament puts any restraint.
Several Acts of Parliament having provided, que la mere soit
overt, it may not be regularly shut against the merchandise of
English, or foreigners in amity with this Crown, unless an Act
Of Parliament shut it, as it hath been done in some particular
cases, and may be done in others."

The following opinion, upon establishing British manufac-
tures in France, was written in 1718 by Mr. West, then
counsel to the Board of Trade, and who died Chancellor of
Ireland, in 1726 (/).

(a) Balk. 32, 335. 3 Lev. 352. 4 (d) Harp-. Tr. Pars Secunda, ck. 9.

Mod. 176. 4 Bac. Ab. 595, title (e) Ibid. cb. 10.

Merchant Chitty, L. of Nat. 72. (/) 2 Chalmers' Collection of Opi-

(*) 2 Rob. 211. nobs, 347. 1 ed. Preface, xxxiii.

(f) Fortejcue R. 388.

«To

166 Foreign Commerce* £Ch.X. Sec.L

" To the Right Honourable the Lords Commissioners for

Trade and Plantations.
" My Lords,

" In obedience to your Lordships' commands, signified to
me by Mr. Popple, I have perused and considered the several
letters relating to the establishing several manufactures in
foreign parts by British artificers; but, as the case is not
particularly stated unto me, it will not be possible for me to
give a direct answer to the question proposed. I shall, there-
fore, beg leave of your Lordships to consider it something at
large, and to lay down some general positions, which I take to
be agreeable to the law of England ; a right application of
which, I believe, will in a great measure amount to an answer
to such inquiries as may be made.

" That particular subjects should have an uncontroulable
liberty of all manner of trading, is not only against the policy
of our nation, but of all other governments whatsoever. I do,
therefore, take it to be law, that the Crown may, upon special
occasion, and for reasons of state, restrain the same ; and that
not only in cases of war, plague, or scarcity of any commodity
of more necessary use at home, for the provision of the subject
or the defence of the kingdom, &c (in which case the King's
prerogative is allowed to be beyond dispute), but even for the
preservation of the balance of trade : as, suppose a foreign
Prince, though ,in other respects preserving a fair correspon-
dence and in amity with us, yet will not punctually observe
such treaties of commerce as may have been made between the
two nations; or in case there are no such treaties existing,
refuses to enter into such a regulation of trade, as may be for
the mutual advantage and benefit of both dominions : on such
occasion, I -am of opinion, that the King, by his prerogative,
may prohibit and restrain all his subjects in general from ex-
porting particular commodities, &c; or else, generally, from
trading to such a particular country or place : since trade does
not only depend upon the will or laws of the Prince, whose
subjects adventure abroad to carry it on, but also of that
Prince into whose country the commodities are exported, and
with whose subjects commerce is negotiated and contracted;
without such a power it is obvious that the government of
England could not be upon equal terms with the rest of its
neighbours, .and since trade depends principally upon suck

treaties

Ch.X. Sec.L] Foreign Commerce* *67

treaties and alliances as are entered into by the Crown with
foreign Princes ; and since the power of entering into such
treaties is vested absolutely in the Crown, it necessarily fol-
lows, that the management and direction of trade, must, in a
great measure, belong to the King.

" Things of this nature are not to be considered strictly
According to those municipal laws, and those ordinary rules,
by which the private property of subjects resident within the
kingdom is determined ; but a regard must also be had to the
laws of nations, to the policy and safety of the kingdom ; the
particular interest and advantages of private men must, in
such cases, give way to the general good ; and acting against
that, though in a way of commerce, is an offence punishable at
the common law.

. " Foreign trades carried on by particular subjects, for their
private advantage, which are really destructive unto, or else
tending to the general disadvantage of the kingdom, are under
the power of the Crown to be restrained or totally prohibited.
There may be a prohibition of commerce without open enmity,
as an actual declaration of war, and particular subjects, who,
for private gain, carry on a trade abroad, which causes a gene-
ral prejudice or loss to the kingdom, considered as an entire
body; in doing so, manifestly act against the public good, and
ought not only to be prohibited, but punished. Carrying on
such trades is in truth (what some Acts of Parliament have
declared some trades to be) being guilty of common nuisances,
and if the Crown, which in its administration of government,
is to regard the advantage of the whole realm, should not be
invested with sufficient power to repress and restrain such
common mischiefs, it has not a power to do right to all its
subjects. If the public mischiefs, from such a way of trading,
be plain and evident, there is the same reason for restraining
particular persons from carrying on a trade that draws such
consequences after it (though it be a trade, that, of itself is not
prohibited by any particular law), as there is that a private
subject shall not make such an use of his own house and land
(in which he has an absolute propriety and a legal title to it)
as will turn to the common annoyance and public detriment of
the rest of the kingdom.

" The general trade of the nation, and the maintaining of
the customs and duties granted to the Crown for the support

of

168 Foreign Commerce. [Ch.X. Sec.L

of it, are things of so public a concern, that whatsoever ha* a
direct and evident tendency to the discouragement and dis-
advantage of the one or to the diminution of the other, is a
crime against the public As an instance of which, I shall
mention it as a kind of precedent ; that raising and spreading
a story, that wool would not be suffered to be exported upon
such a year (probably by some stock-jobbers in those titoes),
whereby the value of wool was beaten down, though it did not
appear the defendants reaped any particular advantage by the
deceit, was, upon the account of its being an injury to trade,
punished by indictment; and a confederacy, without any fur-
ther act done, to impoverish the fanners of the excise and lessen
the duty itself, has been held an offence, punishable by infor-
mation. If, therefore, the consequence of this present under-
taking should prove what is apprehended from it, there can be
no doubt but that the Crown has so much interest and concern
for the trade of the nation and its own revenue, as to be able
to put a stop to the carrying on a thing so mischievous to the
one and the other, by the advice and assistance of his Majesty's
own subjects*

" As to the particular subjects so employed abroad, there is
no doubt but that the King, by his prerogative, may restrain
them ; it is agreed on all hands, that the statute of fugitives,
is but an affirmance of the common law. That the Crown
may, at its discretion, require the personal presence and at*
tendance of the subject, lest the kingdom should be dia*
furnished of people for its defence, as it is said in some
books; and not only so, but upon a suspicion or jealousy
that he is going abroad. ^Ad quam phsrima nobis et quam
pluribus de populo nostra preju&icialia ei damnosa ibidem
prosequenda (as the writ, framed upon that occasion, expressed
it). The Crown is, by law, entrusted to judge what things
those are which shall be looked upon to be mischievous and
prejudicial to the Crown and people, and what caution is to be
taken against them ; and by that writ it appears it is equally
criminal to do any thing of that kind by any other hand, as to
do it personally himself; and, therefore, after the writ has com-
manded his not going abroad, it adds, nee qui quUquam ib.
prosequi attemptes, seu attemptari facias, quod in nostrum sea
diet** corona nostras prejuOdum etdere vakat fauo v£t modo :
nee aliquem ibidem mittas ex hoc causa. •

7 « Upon

Ch. X. Seel.} Foreign Commerce. 169

'< Upon th« veiy foot «f trade hsdfr it is necwsary, that the?
Crown should have a power over the persons and dealings of
their subject* in foreign parts; By the law of nations, a go-
vernment, if they have no other redress, take goods from any
of the same notion, by way of reprisal, for injustice done by one
ef the nations. So that Enghsbnen suffered to reside abroady
by their misbehaviour, may endanger more than their own per-
sons and estates. Bat* as the stating to yonr Lordships, the
power which the Crown has to prohibit the subject from going
abroad, when there m reason to suspect, that designs prejm&»
eial to the kingdom are carrying on alone, is not sufficient to
answer yonr Lordships' purpose, I shall beg* leave to remind
your Lordship* of a case parallel to tins, which has already had
a determination; at the Boasd* anna one thousand seven hun*-
dred and five: Several English merchimts were concerned in at
design to set np the manufacturing of tobacco in Russia, to
which purpose they had carried over die necessary workmen
■and instruments ; but, upon application to the Board1 of Trade,
the then Lords Commissioners did represent it to the Queen
in Council, as their opinion, that the persons who had been al-
ready sent to Moscow, might be recalled by letters of privy
seal, directed to her Majesty's Envoy, for that purpose; and
that the engines and materials of workings should be broken
and destroyed in the presence of the said Envoy ; and that the
persons at home, who were concerned in sending the said work-
men over, should be enjoined not to send over any more
workmen or materials, &c.

" Upon inquiry, my Lords, I am informed, that the said
works and materials were actually destroyed in Russia^ and
the workmen sent back again by the direction of the Envoy,
who tocik the advantage of the Czar's absence from the place
where they wore established. What was then done may cer-
tainly be repeated. It is not the business of a lawyer to consi-
der* how such a method of proceeding may be relished by a
foreign Court; but only to give it, as his opinion, that it may
he justified, as against the particular subjects, who are guilty of
so high a crime against their country.

« Dec. 5, 1718." " Rich. West."

This opinion is written in a most able and plausible manner ;
but it is conceived, with the greatest diffidence, that many of

the

170

Foreign Commerce. [Ch. X. Sec. I.

the propositions and doctrines advanced in it are dangerously
incorrect*

It cannot be denied, that as the King alone may make trea-
ties, a treaty made by him with a foreign power, forbidding
any particular commercial dealings between the two countries,
might have the effect of rendering it illegal for a British sub-
ject to enter into such commercial transactions, contrary to
such arrangement* Nor will it be disputed that the King,
having the absolute discretionary power of recalling his sub-
jects from foreign parts (fc), may, by virtue of that prerogative,
prevent them from personally trading abroad. It is equally
true, that by statute (b) it is illegal to seduce artificers to go
abroad, or to export certain utensils used in trade. But the
position that the King may, from mere political motives, and
independently of any treaty or legislative provision,, pre vent
his subjects from carrying on, or being concerned in, any par-
ticular trade in a foreign country at peace with this, (however
prejudicial such trade may be to the interests of this country,)
appears to be incorrect.

It is, however, in all cases the peculiar province of the
Crown to protect commerce, and there are certainly various
instances in which the King has a discretionary right to pro-
mulgate commercial regulations, and to grant dispensations
in cases of emergency, and where no positive laws exist
on the subject, and a discretionary power of interference is
necessary ; this is, in some cases, by the common law,' in others
by the statute law of the land.

As the protector of commerce, the King alone possesses the
power of appointing Consuls.

During war, trading with an enemy is illegal (c) ; but, as ob-
served by Sir W. Scott (d), " it is indubitable that the King
may, if he please, give an enemy liberty to import," (that is,
when the navigation, or other statute laws, do not expressly
forbid such importation (e). ) " He may, by his prerogative
of declaring war and peace, place the whole of a foreign coun-
try in a state of amity, or, h fortiori, he may exempt any in-
dividual from the operation of a state of war." But the licence

(a) Ante, ch. 3.

(b) 23 Ceo. 2. c. 13.

(c) CbiMy, Law of N»t. 1, &c.

(<f) 2 Rob. R. 162. 1 Ibid. 196. 1
Kant, 486.
(e) 12 East, 296.

to

Ch. X . Sec. I/] Foreign Commerde. 171

to enable an enemy to import goods must be express, for an
enemy will not be protected by a general licence (a), and it has
not been usual to grant licences to an enemy (6). The right
itself is established by the common law (c) ; and in the case of
Vandyke v. Wintmore (rf), Lord Kenyon said, " though the
King may, at common law, license a trading with an enemy's
country, yet he may also qualify this licence, in which case the
parties seeking to protect themselves under it, must conform to
its regulations/'

- The most usual mode in which a dispensation is granted to
individuals, from the general prohibition upon all traffic with
the enemy, is by the grant of licences* The nature of these
licences is clearly explained, and certain rules for their con-
struction most ably laid down by the Court, in the case of the
Cosmopolite (e). In this case, Sir Wm. Scott said, " a li-
cence is a high act of sovereignty ; an act immediately pro-
ceeding from the sovereign authority of the state, which is
alone competent to decide on all the considerations of com-
mercial and political expediency, by which such an exception
from the ordinary consequences of war must be controuled.
Licences being then acts of sovereignty, they are necessarily
stricti juris, and must not be carried farther than the intention
of the great authority which grants them may be supposed to
extend. I do not say that they are to be construed with pe-
dantic accuracy, or that every small deviation should be held
to vitiate the fair effect of them."

During the latter part of the late war, numerous questions
arose on the construction of licences granted by the Crown.
The general leaning in all the Courts was, to give them a com-
prehensive and liberal construction (f).

These licences legalize a trade with the enemy, in every
respect fairly falling within their import, and incidental
to the subject-matter (g). But the King's licence has not

(a) 1 Acton's Rep. 313, 322 , 328. (d) 1 East, 475. And see 12 East,

See 16 East, 197. 1 M.and S. 567. 4 302.

Taunt. 605. (e) 4 Rob. Rep. 11. 1 Chitty, L.

(*) Pbilimore, 2d edit 9, in notes, and Nat. 261 .

Preface, 20, 21. (/) 3 Tannt. 554. 4 Ibid. 376. See

(<?) 2 Roll. Ab. 173. pU 3 ; and 8 T. 1 Holt. R. 132, note.

R. 550. Cbitty, L. of Nat 260. (g) 8 East, 273.

the

172 Foreign Commerce. [Ch.X. Sec.L

the effect of removing the disability of ah alien enemy, so as to
enable him to sue in his own name (a). Ifj however, the alien
reside in this country with the King's permission, he may, in
such case, sue in his own name (6).

The conclusion of a peace necessarily destroys a licence, it
then having no subject-matter to act upon (c).

These prerogative dispensations may also be exercised
through the medium of orders in council, which are of a more
general nature than licences, as they in general contain dispen-
sations, or prohibitions, extending to a whole branch of com-
merce (d).

Though we have seen that the King has not in general, by
virtue of his prerogative, a power to dispense with the com-
mon law, or any legislative provision (e); yet it has been usual,
during the war, to give to the King in Council a power of mo-
difying or dispensing with such provisions as it may be found
expedient, in particular conjunctures, to alter or suspend ; for
the interests of commerce being of so variable a nature, and
depending so much on circumstances suddenly arising, it would
be very difficult, nor to say impossible, during war, to make
them generally subject to any permanent legislative provi-
sion (/).

The power to make these orders of council, and to grant
licences in pursuance of them being derived from Acts of Par-
liament, is of a limited nature, and cannot be extended further
than the acts themselves permit. The construction of licences
granted by virtue of die King's prerogative, will in general
be applicable to licences founded on these statutes.

We have also seen, that in cases of positive state necessity,
the Crown has the power of laying on a general embargo;
and, on the same principle of political emergency and absolute
necessity, on which embargoes are justifiable, we may rest the
Ring's power to make firm declarations of contraband, and to
prohibit the trading in articles which are termed contraband
of war, as arms, ammunition, horses, timber for ship build-
fa) 8 But, 273 ; per Lord Elleobo- (e) Ante, cb. 7. sect. 9. div. 2.
rough. (/) See 43 Geo. 3. c 153. s. 15, 16.

(*) 3 East, 332. 45 Geo. 3. c. 34. 46 Geo. 3. c 111.

(c) 5 Rob. R. 22. 47 Geo. 3. sew. a. c. 27. 48 Geo. 3.

(rf) Chitty, L. of Nat. 279. c 37, 126. 49 Gee* 3. e. 25, 60.

Ch.X. Sec.L] Foreign Commerce.

ITS

ing, naval stores, provisions, at least when inaodbokiireA
and fit for consumption, and in general any implements use-
ful in war (a).

When, during a war, neutral merchants, &c. essist the ene-
my with such articles, they are liable to seizure and confisca-
tion (ft). As observed by Lord Erskine (t), * The King hav-
ing, by his prerogative, the power to promulgate who ape his
enemies, is bound to watch over the safety of the State; he
may, therefore, make new declarations of contraband, when
articles come into use, as implements of war, which were before
innocent This is not the exercise of discretion ever contra-
band ; the law of nations prohibits contanaband, and it is the
usus bellkiy which, shifting from time to time, make the law
shift with them/'

Under this head k may also be mentioned, that die King
possesses the sovereign dominion in all the narrow ««**, that is,
the seas which adjoin the coasts of England, and other seas
within his dominions (tf). This prerogative power is vested in
the King, as the protector of his people, and guardian of their
rights. It is subservient, however, to those jura cormmmia,
which nature and the principles of the constitution reserve for
his Majesty's subjects. It can neither prevent them from trad-
ing or fishing.

As a consequence of (bis prerogative, the King possesses
also the power of reforming, preventing, and punishing any
nuisanees or obstructions in the seas and rivers over which his
jurisdiction extends (*). And it was held on the same ground,
and on the consideration that all matters of a public nature are
in a special manner under the King's care and protection, that
he might (before any statute made for commissioners of sewers)
provide against any inundations, by embankments or other
necessary means (/). The rights of the Crown, with respect

(o) Chitty, Law of Nat 1 1*, fcc. 1
*ob. R. 189. * Ibid. ft*. 4 WW. 33.
.5 Ibid. 97. 6 Ibid. 93, 126.

(A) Ibid.- Vatt b.3.c7.il 12.

(c) Speech, S Mar. 1808, on the Or-
deal in Council. 10 CobUtt's Pari.
Deb. 958, 9.

(<Q Seld. Mar. 251, fco. Hale de
jure Mam, eh. 4. RoL Ab. 168, 9. 5
Co. 106. 10 Co. 141. The Court of Admi-

ralty, which * the proper fbram lor the
fettling of ail maritime afiurs, is more
especially the King's Court, and derives
its jurisdiction immediately from the
Crown. 4 Inst. 142. Molloy, 66. See
Bac Ab. tit Court of Admiralty ; and
3 Price** R. 97, as to the jurisdiction,
fcc. of that Court.

(e) Hale de jure Maris, Hargr. Tr. 8.

(/) 10 Co. 141.

to

1 74 Foreign Commerce. [Ch. X. Sec. L

4

to the soil under the seas, and to maritime incremental will be
hereafter considered (a).

A Port is defined by Lord Hale (b) to be quid aggregattMi
consisting of something that is natural, viz. an access of the
sea, whereby ships may conveniently come safe, a situation
against winds, where they may safely lie, and a good shore,
where they may well unlade ; something that is artificial, as
quays and wharfs, and cranes and warehouses, and houses of
common receipt ; and something that is civil, namely, privileges
and franchises, viz. jus applicandi> jus mercati, and divers
other additaments, given to it by civil authority." It is indis-
putably established, that the right to erect ports and havens is
in general vested exclusively in the Crown (c); apd this rule
prevails so strictly, that even the lord of a county palatine,
though he usually had ports by charter or prescription, cannot
erect a common port within his palatine jurisdiction (d); and
the exceptions to this rule, viz. that a subject may, by charter
from the King, or prescription, erect a port (*), seem strongly
to prove it.

The King has not merely the prerogative power of erecting
ports and havens, but he possesses primd facie the propriety or
ownership in all the ports and havens within his dominions,
though the public have a right to use them {/) ; and even
though the right to a port or haven be vested by charter or
prescription in a subject, yet he holds it charged or affected
with the Jus regium or royal prerogative, as it relates to ports
and havens (g).

The royal right of superintending ports and havens, is a
necessary consequence of the prerogative ownership in
them (A). . Hence the King is entrusted with the care of
preventing and reforming public nuisances in ports and
havens ; the prosecutions for them are in his name, and the
fines for the defects or annoyances in them, form part of his
revenue (*). But this superintending power does not in gene-
ral extend so far as to enable the King to open and shut ports
and havens for the purpose of prohibiting the importation or

(a) Port, ch. 11. (/) Ibid. ch.6. 8 Term R. 606.

(6) De portibut Maris, ch. 2. . (jg) Ibid. Hale, cb. 8.

(0 Ibid. cb. 3. (A) Ibid. eh. 6.

(<0 Ibid. (f ) Ibid. cb. 8. Aostr.603.

(«} Ibid.

exportation

Ch. X. Sec. L] . Foreign Commerce. 1 75

exportation of goods (a). Nor can arbitrary or excessive duties
for cranage, wharfage, &c. be taken from the public; but the
duties must be reasonable and moderate, though settled by the
King's licence or charter (6). *

As the erection of ports is presumed to be for the advantage
of the public, the King in exercising his right to erect them,
is not restrained to any particular place, but may «rect them
in the vicinity but not within the peculiar limits of a former
port, though it belong to a subject by charter or prescription ;
if by the erection of the new port s"hips are not excluded from
going to the old one(c). The King may also prohibit. his
subjects from bringing their merchandise by sea to any port
within a certain distance from one which his Majesty has
newly erected, and this prohibition is obligatory, as against
every one but the legal owner, or the inhabitants of any port
within the specified distance from that newly erected (rf),
although an antient port may lie within the prescribed
bounds; but, as already stated, his Majesty cannot erect a
port de novo within the peculiar precincts or limits which he
has by charter previously assigned to a port belonging to one
of his subjects (e).

The King being entrusted with the safety of navigation,
possesses also by the common law, the prerogative right of
erecting beacons and lighthouses in such places as his wisdom
may deem most convenient for the preservation of ships and
mariners, and the general interests of his subjects (f). This
royal right is considered so important to the public weal, that
it will justify his Majesty in erecting a beacon on the land of a
subject without his consent (g).

The right of erecting beacons and lighthouses is vested by
the common law of the land exclusively in the King; and a
subject cannot raise them without the King's permission (A).
It seems that antiently the power of erecting them was gene-
rally vested by the royal letters patent in the Lords of the
Admiralty, as it previously appears to have been in the Lord

(a) Ante, 165. (/) 5 Bac -Ab. 510. 1 Bla. Com.

(A) 8 Term R. 608. 265.

(c) Hale de portibua Maris, ch. 5. (g) See ibid.

See 5 Bac. Ab. 503. (h) See ibid, and Carter, 90. 4 Iott.

(<*) Ibid. Bac. Ab. 503. 148.
(r) Ibid. Hale.

High

176 Domestic Trade. [Ch. X Sec.Il

Admiral (ar). At length, by the statute * EUauc 13.(4^
the power was partially vested in the Trinity House at Depfr-
ford. That statute provides, " that the Master, Wardens, and
Assistants of the Trinity House at Deptford Strond, being %
company incorporated** therein mentioned, may, from time to
lime, at their wills and pleasures, «id at their -costs, make, erect,
and eet np such and so many beacons, marks, and signs for the
sea, in such place or {faces of the seashores, and uplands near
the sea coasts, or forelands of the sea, only lor sea marks, as
to them shall seen Jnost meet, needful, and requisite, whereby
the dangers may be avoided and escaped, «nd -ships the better
oome into their ports without peril"

" And that sD anckt beacons, marks, and signs* so to be by
4hem er their assigns ereoted, made, and sat up, at the •ooats
nnd charges of tie .said Master, Wardens* *nd Assistants,
abaH and may be oontinned* a&newed* and maintained* from
tkne to time, at the codls and cbaiges of the said Master,
Wardens, and Assistants.*

This act does nab h will be observed, relate to beacons,
sea-marks, or ligbtri*o*ses, which it jnay be necessary to plaoe
in rivers, or other waters, away from die sea, the erection of
which must, therdore, be governed by common law rules j but
it seems to tnctend as well to night Ughttouaes as to beacons
or other sea^madcs, -which may be used in the day-time (c).

\ II.

The Prerogatives voi$h respect to ike JDme$iic Commerce, or I*-
ierrud Trade of the Country, my be €omidered^ xeith rtfer-
£nce~ltt9 To Monopolies and Patents fer Inventions*— 2dty>
Marts mi Fotrs^-erdly, Wtigkt* *nd Me*mes.—*thfy
Money, Coin, fa

Tme interests and the freedom of domestic commerce have
also been carefully watched and guarded by the English laws.

(•) See 4 last. US. 1 Sid. 158. to the Sdjifeane, tee 4 and 5 Ann. c.M.

(A) The provisions of thu Act were And as to the light-home on tbc Snails,

extended to vessels appointed to ojuny see 18 Geo. S. c 42.
lights, by 48 Geo, 3. c. 104. s, 61. Ai (c) See 4 Inst. 149, injnarjin.

On

Ch.X. Sec.IL] Patents. 177

On the freedom and careful regulation of the internal trade of
a country, materially depend the industry, the wealth,- and the
comforts of retail dealers, who form by far the greater portion
of the mercantile branch of the community, and a very consi-
derable part of society at large; and the welfare of the
rest of society are also involved in the immunities of trade*
It is, therefore, a settled principle of the common law, that any
arrangement which restrains or affects the freedom of trade,
or leads to public inconvenience, by raising the price of pro-
visions &c. is invalid (<*). The law equally restrains the exer-
cise of the highest prerogatives of the Crown, and forbids the
most trivial engagement between the lowest of its subjects,
when the objector effect may be injurious to the public in this
respect Hence it was, in the most antient times, a rule of the
common law, that a monopoly [which may be defined to be an
allowance by the King to any person or body of persons, for
the sole making or selling, &c., any thing whereby any persons
are sought to be restrained of a freedom or liberty they had
before, or are hindered in their lawful trade (6)], is contra-
ry to law (c). These monopolies were granted by Queen Eli-
zabeth, to an intent highly prejudicial to the public, for the
purpose of filling her coffers; but the mischief was suppressed
by the statute 21 James 1. a 3. which declares, that all mono-
polies, &c are contrary to law, and shall be deemed void and
of none effect ; and some provisions are made for the prevention
of any future grants tending to create a monopoly.

Even at common law, the King had the power of conferring
on the inventor of any useful manufactory or art, the sole use of
ft for a reasonable time(d). This species of monopoly differs
widely from that just considered. He who by his ingenuity,
his labour, or his skill, has made a discovery essentially bene-
ficial to the public, has in a manner earned an exclusive and
temporary right to the profits it may afford. This is but a fair
recompence for the benefits he imparts to society, to which jus-
tice, and the policy of encouraging talents, and the exercise of
skill, evidently entitle him. On this common law principle,

(«) See 1 P.Wms. 181. 2 Stand. (e) Ibid. Bac. Ab. tit. Monopoly.

157. a. 1. Stra. 739. 5 T. R. 111. Bull. N. P. 76. Bridgm.ed.

10 East, 82. (d) Noy. 162. 2 Hawk. P. C. bk. 1.

(b) 3 Inst 181. 2 Hawk. P. C. 293. c. 79. s. 20.

bk. 1. c 79.

n the

1 73 Patents. [Ch.X; Sec. Ili

the statute of James 1. expressly provides, that n6 declaration
therein contained shall extend " to any letters patents, and
grants of privilege, for the term of fourteen years or under,
thereafter to be made, of the sole working or making of any
manner of new manufactures within this realm, to the true uni
first inventor and inventors of such: manufactures, which others
at the' time of making such letters patents, and grants, shall
not use, so as also they be not contrary to the law, nor mia*
chievous to the State, by raising prices of commodities at
home, or hurt of trade, or generally inconvenient; the said
fourteen years to be accounted from the date of the first let?
ters patents, or grant, of such privilege thereafter to be
made, but that the same shall be of such force as they should
be, if that act had never been made, and of none other."

In noticing the law, respecting patents for inventions, we,
will consider— First, for what inventions patents may be
granted; secondly, who is to be considered the inventor;
thirdly, the description of the invention in the specification;
fourthly, how a patent is obtained ; fifthly, the remedies for
the infraction of the patent right; and, lastly, how the patent
may be vacated.

First. It will be observed, that the Act mentions letters
patents for the sole working or making of " new manufacture?
within this realm.

Manufactures are things made by the hands of man, and
are reducible to two classes, namely, machinery and substances^
In the former case, the machine, in the latter the substance
produced, forms the manufacture and is consequently the subr
ject of a patent (a). As observed by C. J. Eyre (6), " the
word manufacture is of extensive signification : it applies not
only to things made, but to the practice of making ; to prin-
ciples carried into practice. Under things made we may class
new compositions of things, such as manufactures in the most
ordinary sense of the word ; all mechanical inventions, whe?»
ther made to produce old or new effects, for a new piece of
mechanism is certainly a thing made. Under the practice of
making, we may class all new artificial manners of operating
with the hand, or with instruments in common use, new pro-
cesses in any art producing effects useful to the public. New
methods of manufacturing articles in common use, where the

(«) 3 H. B. 48 J, 2. (I) Ibid. 499.

whole

whole merit and effect produced are the? saving of time and*
expense^ and thereby lowering the price of the article, may
be said to be new manufactures, in one of the common accep-
tations of the word, and agreeable to the spirit and meaning
of the Act." To the same effect it was observed by Abbott,
G, J. in the King t?. Wheeler (a)9 that " the word f manufac-
tures' haB been generally understood, to denote either a thing
made, which is useful for its own sake, and vendible as such,
as a machine, a stove, a telescope, and many others, or to
mean air engine or instrument, or some part of an engine or
instrument, to be employed either m the making of some pre*
vknisly known article, Or in some other useful purpose, as a
stocking-frame, or a steam-engine for raising Water front mines.
Or it may perhaps extend also to a* new process to be carried
on by known implements or elements, acting upon known sub*
stances, and ultimately producing some other known substance,
but producing it in a cheaper and more expeditious manner
or of a better and more useful kind/1 And in Edgeberry 0.
Stephens (4), the words " new devices" are substituted and
used as synonymous with the words " new manufactures."

The novelty of the invention for which the patent is obtained
is indispensable to its validity ; but the patent is good, though,
in inventions through the medium of mechanism, the materials
used be well known, and have been used before, if the arrange-
ment or combination of them be new, that is, produce a new ef-
fect : but in such case the patent must be for the compound
article, and not for the old materials or ingredients of which
it is made (i).

So a material and useful addition to, or improvement of, an
old article is considered as a new manufacture ; consequently,
also, the subject of a patent (d). And a patent for an improve-
rtent of a thing, or for the thing improved, is in substance
the same (e). The patent however must not be more extensive
than the invention (/) : consequently one for an improvement
only, must not extend to the whole of the old article, but be

(a) t Burnew and Aid. 349. ion. Bnl. Nis. Pri. 76, c. Briclgm. ed.

(b) 2Saik.447. («) Mr. Justice Heath, in Boulton

(c) Ibid. 2H.B. 487. Lord Ellen- and Watt c. Bull. & H. B. 481, 2.
borough inHuddartv. Grimshaw. Da- (/) Mr. Justice Bailer, in the King
Ties oo "Pat 267, 8, 9. 2 Marshall, 21 1. *. Else. See Bnl. Nis. Pri. 76, d. 1 1

(<f) Lord Mansfield in Morris o.BraB- East's R. 109, note.

V 2 confined

MO Patent*. [Ch.X.SeC.ir.

confined salely to the improvement; as ttaf public have a right
to purchase the improvement by itself, without being encum-
bered with other things (a). Therefore where the invention
was of a particular movement in a watch* and the patent wa»
taken out for the whole watch, it was held void (6).

A mere principle will not support a patent, because it is the-
first ground or rule for arts and sciences, or in other words
the elements and rudiments of them. A patent must be for
some new production from those elements which is vendible ^
for something of a corporeal and substantial nature, that caw
be made by man from matters subjected to his art and skill ;
and not for the elements themselves (e). If, however, a new
principle, or method of doing any thing; or using old mate-
rials ; be reduced into practice ; and be so far imbodied or
connected with corporeal substances, as to be in a condition:
to act, and to produce a new result, the patent is sustain-
able (d). There cannot be a patent for a mere philosophical
principle, neither organized nor capable of being so; but a
patent for a machine improved by a philosophical principle,
though the machine existed before, is good. As laid down by
C. J. Eyre, in Boulton v. Bull (e). " When the effect pro-
duced is no substance or composition of things, the patent
can only be for the mechanism, if new mechanism is used, or
for the process, if it be a new method of operating, with or
without old mechanism, by which the effect is produced. To*
illustrate this, the effect produced by Mr. David Hartley's
invention for securing buildings from fire, is no substance or
composition of things : it is a mere negative quality, the ab-
sence of fire. This effect is produced, by a new method of
disposing iron plates in buildings. In the nature of things the
patent could not be for the effect produced. I think it could
not be for the making the plates of iron, which, when disposed
in. a particular manner, produced the effect; for those are
things in common use. But the invention consisting in the
method of disposing those plates of iron, so as to produce
their effect, and that effect being a useful and meritorious one,

(a) Mr. Justice Buller in Boulton and (c) 2 Hen. Bla. 463. 8T.R. 101-
Watt v. Bull. 2 Hen. Bla. Rep. 463. S.Barnew and Aid. 350.

(b) Jesaop's case, cited by Buller, J. (<*) Ibid.

in the same cauie. (*) 2 Heu» Bla. 493-

the

OuX. Sec. II.] Patents. 181

the patent seems to have been very properly granted to him,
for his method of securing buildings from fire." Though a
patentee denominate his discovery " a method/9 or a " prin-
ciple" only, yet if the thing invented be in fact something
substantial, or a new and useful effect produced by a new
application .of means known before, the verbal inaccuracy will
not vitiate the grant (a).

The statute allows of patents for inventions with this 'quali-
fication, " that they be not contrary to the law, nor mischiev-
ous to the State," in these three respects : first, by " raising
the prices of commodities at home;" secondly, by being hurt-
ful to trade ; or thirdly, by being generally inconvenient Ac-
cording to the letter of the statute, the saving goes only to
the sole working and making ,• the sole baying, selling and using
remain under the general prohibition: and with apparent good
reason for so remaining, for the exclusive privilege of buying,
selling and using, could hardly be brought within the qualifi-
cation of not being contrary to law, and mischievous to the
State, in the respects mentioned (6).

The rule that the patent must not be more extensive than
the invention will be considered in our observations on the
specification.

Subject to these rules the patent and specification ought, k
seems, to be liberally construed : there should be no leaning,
against it ; and the patent generally contains an express clause
that it shall be taken and construed in the most beneficial
sense in favour of the patentee. In Turner v. Winter (c),
Mr. J. Buller said, " when attempts are made to evade a fair
patent, I am strongly inclined in favour of the patentee."
Though in Hornblower v, Boulton(d), Lord Kenyon remarked,
that " he* was not one of those who greatly favored patents ;
for though in many instances the public were benefited by
them, yet on striking the balance on this subject he thought
that great oppression was practised on inferior mechanics by
those who were more opulent."*

Secondly, the statute requires that the patent should be

(a) 2 Hen. Bla. 417, per Rooke, J. (c) 1 T. R. 60&
2 Barnew and Aid. 350. (rf) 8 Ibid. 98.

(b) t Hcu. Bla. 499.

granted

1 82 Patents. [Ch.X. Sec. II.

granted to the true and Jlrst inventor of a manufacture which
at the time of the grant has not been used by others.

The decisions on the. wording of this part of the statute,
prove that it is entitled to a liberal interpretation in favour of
new and beneficial discoveries (a). The word inventor ("a
finder out of something new (6)" ) has not been restricted to
its literal signification ; but has, on fair grounds of political
convenience, been construed to mean the first publisher or
introducer of the invention : so that a person in this country
who is in possession of, and introduces a foreign discovery,
may obtain a patent (c). And where the patentee was not the
first inventor, though he was the first publisher or introducer,
of a British invention (the first inventor having confined it to
his closet, and the public being unacqainted with it) ; the pa-
tent was considered valid (d). In such case the patentee,
though not the inventor, renders a benefit to the public; and
it is the part of good policy to encourage the early production
of the inventions of genius. But when the discovery has been
used by others or publicly sold by the patentee himself, only for
a short time, as four months before the time when the patent
is granted, the patentee is unable to confer on the public the
"benefit they are entitled to expect, and the patent is void (e).
And it seems that if the patentee were informed of the disco-
very by another person in this country, the patent would be
unfounded {/).

Thirdly, Of the description of the invention in the specifi-
cation*

Though there be nothing in the Act of James I. requiring a
specification, the patent universally requires, as a condition on
which the validity of the grant depends, that the patentee shall
" particularly describe and ascertain the nature of the invention,
and in what manner the same is to be performed, by an instrument
in writing under his band and seal ; and cause the same to be

(a) See post. ch. 16. t. 3 ; as to gene- thing, the party who first communicates

ral rale in construing King's grants, it to the public is entitled to the benefit

(6) Johnsons Diet. of K.

(c) 2 Salk. 447. 2 Hen. Bla. 491. (?) Tennant's Case, Davies on Pa-

(<0 2 Hen. Bla. 470, 487. And in tents, 429, &c and Wood v. Zimmer.

Forsyth v. Riviere, N. P. K. B. Jane 1 Holt Rep. X. P. 58.

4, 1319} C. J. Abbott held ihat if se- (/) Tennant's Case.
vcral simultaneously discover the seme

enrolled

^

Qh.X. Sec.IL] Patents. 1 93

enrolled in Chancery within a certain time (usually one calen-
dar month) from the date of the letters patent/' The object
of enforcing a full, explicit and precise disclosure of the exact
invention, is to enable the public after the expiration of the
patented term to " work and make" it, as the inventor alone le-
gally could during the fourteen years. The monopoly would sub-
stanfkdly be permanent, instead of temporary, if the patentee
were at liberty to conceal either wholly or partially, or were
allowed to state ambiguously the principles on which it is
founded; for in many instances the corporeal substance or
thing forming the subject of the patent, affords no informa-
tion or clue to a discovery of the mode of making or working
it. In all the cases which are before the public, in which the
specification has formed the subject of discussion, we may trace
the most anxious desire on the part of the Court to act folly
up to this principle. A slight, though inadvertent defect, will
often vitiate the grant Few specifications have successfully
stood the test of legal scrutiny r a consideration which proves
the necessity of exercising the utmost circumspection and care,
and of calling to the patentee's aid the skill, the experience,
and the unprejudiced judgment of others. He whose mind
and thoughts have long been engrossed with any given subject,
overlooks the ignorance of others, and is apt to forget various
waiters which gradually led his mind to the discovery, and
irfiich form a part of the invention*

The general rule with respect to the specification seems to
be this, that it must disclose the nature of the invention, and
the manner in which it is to be performed, so as to enable
mechanical men of common understanding, and a reasonable
degree of skill on the subject, to comprehend and make the
thing by it, without any trial, experiment, invention or ad-
dition of their own (a). But it need not explain any thing .
respecting the discovery so folly as to enable a person entirely
ignorant of mechanics, and not conversant with the subject,
to understand and act upon the specification without other
assistance (4). Reference must often be necessarily made in
these cases to matters of general science ; or the party must

(a) Bui. Nit. Pri.76, d. Bridpn. ad. 434. 2 ftarnew and Aid. 354.
9 Hen. Bla. 484, 496. 1 1 Bait, 107, 8. (b) Ibid.

Davfes on Patents, 56, 106, 128,194,

carry

1 84 Patents: [Ch. X. Sec. II.

carry a reasonable knowledge of the subject-matter with him,
ill order clearly to comprehend specifications of this nature,
though fairly intended to be made (a).

In the first place the specification is insufficient if it be
ambiguous, or give directions which tend to mislead the pub-
lic (ft). If articles are put into a specification merely to puz-
zle, or are not useful for the purpose of the patent, it is
roid (c). So where the patent was for making a particular
sort of yellow, and the patentee directed any sort of fossil
salt to be used ; when only one sort of it would answer the
purpose ; the patent was held void (d). An ambiguity may
arise from the specification stating as essential parts, anything
which forms a part of a prior invention ; for the public are
not to be deceived by the patentee holding out as material,
those things which in] fact are not so (e). The patentee must,
in his claims to novelty, confine himself solely to that which
is his invention {f). The patent must not be more extensive
than the invention : and where the patent is for an improve-
ment or addition, the patent and specification (g) must not be
for the whole machine or manufacture, and the latter must
describe precisely in what the alleged improvement consists ;
so that what is old, may be distinguishable from what is
new (A). As observed by Lord Ellenborough (i), ** the pa-
tentee in his specification ought to inform the person, who
consults it, what is new, and what is old. He should say,
my improvement consists in this, describing it by words if he
can, or, if not, by reference to figures. But here the improve-
ment is neither described in words nor by figures, and it would
not be in the wit of man, unless he were previously acquainted
with the construction of the instrument, to say what was new
and what was old. . The specification states, that the improved
instrument is made in manner following : this is not true, since
tiie description comprises that which is old, as well as that

(a) 11 East, 113. (/) 11 Ewt, 109. See per Sir Vic

(*) 1 T. IL 602. Gibkt, in Bovill «. Moore, cited Davie*,

(c) Res *. Ackwright, Bui. N. P. 398.

47. Dories, 118. (g) See Hex v. Ackwright, 1784, cor.

(cf) 1 T. R. 60S. Buller, Bui. Nk. Pri. 76, c Bridgm.

(e) See Lord Ellenborough'i Obter- ed. 11 East, 109.

Yitioosio Huddart v. Grimjhair, Pa- (A) 1 Stark. 199. Dafief, ill.

vie», 379, 394, 5. (j) l stark. SOI.

which

Cb.X. Sec. II.] PaknU. 185

which is new. Then it is said, that the patentee may. pi^t in
aid the figures, but how can it be collected from the whole of
these in what the improvement consists ? A person ought to
be warned by the specification against the use of the particular
invention, but it would exceed the wit of man to discover from
what he is warned in a case like this." And if a patentee in
the specification sum up the principle in which his invention
consists; if this .principle be not new the patent cannot be
supported, although it appear that the application of the
principle, as described in the specification, be new. In a late
important case on this subject (a), the Court of Common Pleas
held that where a person obtains a patent for a machine con-
sisting of an entirely new combination of parts, though all the
parts may have been used separately, in former machines, the
specification is correct in setting out the whole as the inven-
tion of the patentee: but if a combination of a certain num-
ber of those parts have previously existed up to a certain point
in former machines, the patentee merely adding other combi-
nations, the specification should only state such improvements;
though the effect produced be different throughout. But
where the party obtained a patent for a new machine, and
afterwards another patent for improvements in the said ma-
chine, in which the grant of the former patent was recited,
it was held that a specification, containing a full description
of the whole machine so improved, but not distinguishing the
new improved parts, or referring to the former specification,
otherwise than as the second patent recited the first, was suf-
ficient (i). And it seems to be unnecessary in stating a spe-
cification of a patent for an improvement to designate precisely
all the former known parts of the machine, and then to apply to
these the improvement; but on many occasions it may be suf-
ficient to refer generally to them* As, in the instance of a
common watch, it may be sufficient for the patentee to say,
take a common watch, and add or alter such or such parts, de-
scribing them (c).

So Hie falsity of any allegation in the specification will va-
cate the patent. As if the patentee say, that by one process he
can produce three things, and he fail in any one ; or if the spe-

(«) 3 Marshall, JL.211. («?) Ibid. 107. .

(*) 11 East, 101.

cification

1 86 Patents* [Ch. X* SecIL

csfioation direct the thing to be produced several, ways, or by
several different ingredients, and any one of them fail (a).. So,
if the thing could only be made with two or three ingredients
specified, and the patentee has inserted others which wilt
not answer the purpose, that will avoid the patent (&)• As
stated by Sir V. Gibbs, in Bovill v. Moore (c)> " another con-
sideration respecting the specification, which is also a material
one, is, whether the patentee has given a full specification of
bis invention, not only one that will enable a workman to con*
struct a machine answering to the patent, but one that will
enable a workman to construct a machine answerable to the
patent, to the extent most beneficial within the knowledge of the
patentee at the time; for a patentee who has invented a ma-
chine useful to the public, and can construct it in one way more
extensive in its benefits than in another, and states in his speci-
fication only that mode which would be least beneficial, reserv-
ing to himself the more beneficial mode of practising it, al-
though he will have so far answered the patent, as to describe
in his specification a machine to which the patent extends ;
yet he will not have satisfied the law, by communicating to the
public the most beneficial mode he was then possessed of, for
exercising the privilege grouted to him," As if the prosecu-
tion of a manufacture be assisted in a lace machine, by bend-
ing together two of the teeth of the dividers, or making one
longer than the rest, if it appear to have been a subsequent dit*
<&ocry> it will not break in upon the validity of a patent, it will
only shew that the patentee has since found out the means of
carrying on his own invention to better effect (i); but if at the
time when he obtained his patent, he was apprized of this more
beneficial mode oi working, and did not by his specification
communicate this more beneficial mode of working to. the pub-
lic, that will have been a fraudulent concealment from the pub-
lic, and will render die patent void (*)• So, if the patentee
make the article with cheaper materials than those which he
has enumerated, although the latter will answer the purpose
equally well, the patent is void, because he does not put the
public in possession of his invention* or enable, them to derive

(a) 1 T. K. 60S. (rf) Dark* on PaUnt*, 381. Sir V.

(*) 1 Ibid. 601. Gibbs ia Bovill o. Moore,

(c) At N. P. IfeviM, 400. |o a P. (e) SbkL 401.

2 Marshall, 211.

the

Ch.X.Sec.IL] Patents. 187

the flame benefit wliich he himself does (a). In a case before
Lord Mansfield, for infringing a patent for steel trusses, it ap-
peared, that the patentee in tempering the steel, rubbed it with
tallow, which was of some use in the operation, and because
this was omitted, the specification was held to be insufficient,
and the patent was avoided (i). And in a recent case, the
wilful omission to state an article, which, though it was not
necessary to the composition of the manufacture! produced it
more expeditiously, was held to vacate the grant (c). In short,
the exact nature, and the mode of conducting the processes,
and the times they are to be continued, should be accurately
Stated, and specifically pointed out (d).

It is not necessary to set forth a model or drawing, illustra-
tive of the invention described in the specification (e) : but it
is usual and perhaps advisable so to do* It should be drawn
pn a scale, especially where relative sizes or distances are im-
portant (/). The general rule however seems to be, that the
specification must contain within itself the necessary informa-
tion, and should not refer to other distinct instruments or
books, &c for particulars (g). But in Harmar v. Flayne (A), a
patent for improvements upon a former machine was held
good, although the specification described the whole machine,
without distinguishing the improvements from the part of the
whole machine or referring to the former specification, other-
wise than as the second patent recited the first.

Care must also be taken that the denomination or title of the
invention in the patent is not more or less extensive, and does
not vary from that mentioned in the specification. The lan-
guage of the patent as was observed in a late case (/),
may be explained and reduced to a certainty by the specifica-
tion; but the patent should not represent the party to be the
inventor of one thing, and the specification shew him to be the
inventor of another ; because, perhaps, if he had represented
himself as the inventor of that other, it might have been well
known that the thing was of no use, or was in common use,

»

(a) 1 Term R. 607. and 1 Holt, R. (/) Hands on Patents, 1 1.

N. P. 60. (g) Harmar ©. Playne, 11 East, 112,

(b) 1 Term, 60S. S. 1 Ves. and B. 67,

(c) Holt's Rep. N. P. 58. (a) 11 East, 101.
(rf) 2 Barnew and AM. 345. (t) 2 Bmrnew and Aid. 350, 1.

(«) See t Hen. Bla. 46&

and

188 Patetits. [Ch.X: Sec. II.

and he might hot have obtained a grant as the inventor of it
We have already considered that patents for improvements
must be taken out accordingly (a). In Hornblower v. Boul-
ton (#), the patent was obtained " for a method of lessening
the consumption of steam and fuel in fire engines." This was
effected by improvements of an old machine, and the patent
was held good. Grose J. observed, " I consider the patent
and specification so connected together as to make a part of
each other ; and that to learn what the patent is I may read
the specification, and consider it as incorporated in the patent
Whether the patent call the manufacture by its name, or style
it an invention, a mode, or method, or in any other manner,
it signifies nothing ; for the specification describing the thing
as required by the patent must be resorted to, and may fairly
be deemed a part of the patent itself." But in a subsequent
case, a patent " for an improved mode of lighting cities, towns,
and villages," was held not to be supported by a specification
describing an improved lamp. The patent should have been
obtained " for an improved lamp (c)" And a patent for a
" tapering brush" will not support a patent for a brush, differ-
ing from a common brush in . no other respect, than in the
circumstance that the hair or bristles are purposely made of
unequal lengths (d). Nor will a patent " for a new or improved
method of drying and preparing malt" be sustained by a spe-
cification for heating, &c. ready made malt (e).

Particular care should be. taken that the specification is
acknowledged and lodged in the inrollment office before the
expiration of the specified time, as the legislature only can
give relief afterwards (f). A proviso that a specification shall
be enrolled within one calendar month then next after the date,
which is the 10th of May, is satisfied by an inrolment on the
10th of June (g).

Fourthly. How a patent is obtained.

To obtain a patent, a petition for it must be prepared, to-
gether with an affidavit of the inventor in support of the
petition. These are then taken to the office of the Secretary

ia) Ante, 184. (rf) 2 Stark. Rep. 249.

(4) 8 T. R. 95. 2 Baraew aod Aid. (e) 2 Barncw and Aid. 350.

35°- (/) 6Ve». Jim. 599.

(t) 1 SUrk. 205. (f ) 2 Campb. 294.

7 Of

Ch.X.Sec.II.1 Patents. 189

of State for the Home Department, where they are lodged. A
few days after, the answer to the petition may commonly be
had, containing a reference of it to the attorney or solicitor-
general, which must be taken to either of their chambers for
the report thereon ; and in a few days afterwards the clerk will
deliver it out The report is then to be taken to the Secretary
of State's office for the King's warrant, and the clerk will in-
form the person leaving it when it may be called for. The
warrant is directed to the attorney or solicitor-general, and is
to be taken to their patent office for the bill. When the bill
is prepared, it is taken to the Secretary of State's office, for the
King's sign manual to the bill. As soon as this is obtained, it
is carried to the signet office to be passed there, when the clerk
prepares a warrant for the Lord Keeper of the privy seal,
whereupon the clerk of the privy seal prepares his warrant
to the Lord Chancellor. This warrant is then to be taken to the
Lord Chancellor's patent office, where the patent itself is pre-
pared and will be delivered out as soon as it is sealed. The
specification should then be prepared, acknowledged, and
lodged at the enrollment office, to have the usual certificate
of the enrollment indorsed on it ; this is commonly done in
about a week or fortnight afterwards, and then the patent is in
every respect complete. For Ireland and Scotland there must
be distinct patents (a).

With respect to a caveat, Mr. Davies in his work on this
subject makes the following useful remarks : " It now only
remains that we should say a few words upon the nature and
effect of a caveat, which during our practice we have fre-
quently found to be very much misunderstood. It has been
thought by many inventors, that upon entering a caveat they
secured the right to themselves of obtaining a patent, notwith-
standing the invention might be brought into use prior to their
having done so; in short, that it was a kind of minor patent,
giving them every privilege for one year which the patent itself
would do for fourteen, or that it would operate as a proof of
their being the first and true inventors, and that upon their
afterwards obtaining a patent, they would be able to maintain
it against any person, who, in the mean time, might have made

. . (a) See Hands, 13, &c

use

190 Pafcntt* [0H.X.&&if.

use of the invention* In order to obvkrtte such erroneous ideas*
it is necessary to explain the nature and effect of a caveat*

" A caveat is merely a desire that if any person should
apply for a patent for any particular invention* notice of such
application should be given to the party* This caveat is usu-
ally entered at the offices of the attorney and solicitor-general,
and upon an application to either of them for his report upon
a petition to the King for a patent for any discovery of the
same nature as that described in the caveat, notice is given-
to the person who has taken this precaution which gives him
an opportunity, if he thinks the inventions interfere with each
other, of opposing the application. If it is meant to oppose*
the attorney at solicitor-general before he makes his report
will give a separate audience to each party, and examine the
nature af the two inventions, and according to his opinion of
their similarity, will make his report or not : if he is of dpinion
that there is a material coincidence, he will not report iu favour
of the application ; but if otherwise, he makes his report, and
the patent proceeds in its regular course. If however the party
entering die caveat is not satisfied with the decision of the
attorney or solicitor-general, he has another opportunity of
opposing, by entering a caveat at the great seal, when the Lord-
Chancellor will himself give a similar audience and examine
the pretensions of the parties. This practice is not often;
recurred to, as it is attended with much expense, add die
Chancellor usually orders all costs to be paid by the party
opposing, if he does not succeed, as he is averse to the caveat
in so late a stage of the business, after great part of the ex-
pense of the patent has been incurred (a\

" The caveat remains upon the books fop one year, and may
be renewed from year to year as long as may be considered
requisite.

" If it is thought necessary to enter a cavdat, it is proper to
use general expressions, rather than to express the precise in-
vention, as by that means the inventor would receive notice
of any application for a patent, connected witfi the subject of
the invention mentioned in the caveat, which might not be the
case if the particular invention or improvement should be ex-

Co) In ex parte Fox, 1 Ves. and 6. 67. shall be allowed where the caveat is not
the Lord Chancellor held that no cost* unreasonable.

6 actly

Ch.X,S6C.IL] Fatenti. 191

actly identified* Another .reason for general expressions is*
to guard against the opposite party obtaining a knowledge of
the invention, as he might be able to afieet the vaKdity of the
patent* by publishing the invention before the patent is sealed,
which would have the effect of throwing the invention open tp
the public* But it will sometimes happen, that two ingenious
persons may, without any improper communication, make a
discovery of a gimiUr invention, in which case* upon the simi-
larity of the invention appearing to the attorney or solicitor
general, it is usually recommended that the parties should
unite interests, and take out a patent in their joint najoes*
which ee$ms to be the moat prudetnt plan for both parties, as
priority of invention would be of no avail, if the other party
should he inclined to publish the invention, so as to affect die
patent We cannot, however, too much reprobate a practice*
which has of late grown into use by some speculative persons«
of keeping a list of caveats upon general principles entered in
the books, without any idea of obtaining patents themselves*
but with the sole view of being acquainted with every improve-
ment that is going on, whereby they gain an opportunity of
coming to a compromise with the real inventors, and sometimes
hove obtained large sums of pioney from them, to withdraw
their opposition/'

It will have been collected from the eases cited bafcve(a),
that great care must be observed in stating for what the
patent is taken out, and that an error in this respect may be
fetal.

By provisoes in the patent, the grant becomes- void if the
patent right become vested in five different persons at the
same time, or if the specification be not enrolled within the
time.

The term for which the patent is granted can only he poo-
longed by Act of Parliament.

FjfUdfo Of the remedies for the infraction of the- patent

right

The exclusive right of the patentee " to work and make"
the subject-matter of the grant, is infringed by any other per-
son copying any part o£ the invention* And though the ma*
chine, &c. made by the defendant be inform difierent from the

(a) Ante, 184, 188.

patentee's,

192 Patents. [Ch,X/Se6.If/

patentee's, still, if the defendant has availed himself substantia
ally of the new idea of the plaintiff, however ingeniously thet.
exterior of the production may • have been trotted up into a
different shape, the remedy seems clear (*). The2 law will not'
suffer an individual to do indirectly that which it directly forbids.
And in ex-parte Fox (6), the Lord Chancellor obsetvedj" If
the petitioners have invented certain iinpfovetaents updn aif
engine for which a patent had been granted, and those im-
provements could not be used without the original engiite, at
the end of fourteen years the petitioners could make use of m
patent taken out upon their improvements, though, befcte that
period expired, they would have no right to make use of the
others' substratum"

The remedies are by action at law for damages, or by pro-
ceedings in Chancery. Perhaps it is in general advisable as a
matter of course to commence proceedings in Chancery with all
possible expedition, for an account of the profits made front
the illegal use of the invention. An injunction may thereby
also be obtained to restrain the party from the further use of
the patent right (c) ; but there must be separate bills upon
every distinct invasion of the patent (d). An action at law tor
try the validity of the patent is almost invariably directed by
the Lord Chancellor.

On the trial of the action, the plaintiff must give some
general or slight evidence, shewing the nature of the invention •
and that it produced the effect specified. It is in strictness
incumbent on the defendant to falsify the specification (?) ;
but it is advisable that the plaintiff should be prepared with
the strongest possible evidence in support of the merits of the*
discovery, and the sufficiency of the specification. Letters
patent being under the great seal are matters of record (f)9 and
are therefore read without proof: and by statutes 8 and 4 Ed.'
6. c. 4. and IS El. c 6. patentees and all claiming under them,
may make title by shewing the exemplification or constat of
the roll. These statutes have been held to extend to all the

(a) See per Rooke, J. in Boalton v. (d) S Ves. Jan. 486.

Ball, * H. B. 477. Sir V. Gibbi, C. J. (e) 1 Term R. 608.

Bovill o. Moore, Davits, 405. (/) 2 Bla. Com. 346. Dr. and Stp-

(*) » Ves. and B. 67. dent, book 1. dial. 8. PfcMips'f End.

(c)See Mitf. Chancery Pleadiogs, 173,4% See Ball. N. P. 3*7.
1S4.

King's

ChtX. Sec.II.] Maris, %e. iJtt

King's patents, which concern lands* * privilege, or other thing?
granted to a subject, corporation, or any other (a).

. Sixthly, The mode of vacating the patent by scire facias wilL
he considered hereafter. Besides which its defects may be ex*,
posed and established by the verdict of the jury against the:
patentee, in an action for infringing his right: or in answer to,
his suit in equity .for an account and injunction to prevent the
further use of it The statute of monopolies, 21 Jac 1. c &>s. 2*.
declares that monopolies, letters patent, &c and their force
and validity, " ought to be and shall be examined, heard, tried,;
and determined by and according to the common laws of this,
realm, and not otherwise.".

2. Marts and Fairs were originally instituted for the benefit
of the public, and the better regulation of trade* As protector
of commerce, the King alone possesses the power of creating
markets and fairs ; nor can any one claim them but by grant
from the Crown or by prescription, which supposes such grant
(b) ; though they may exist by way of royal ordinance, without
bewg granted to any one in particular (c). It was observed by
Lord Mansfield (d), that the reason why a fair or market
cannot be holden without a grant, is not merely for the
sake of promoting traffic and commerce, but also for the like
reason, as in the Roman law, for the preservation of order and
prevention of irregular behaviour ; " ubi est multitudo ibi debet
esse Rector!*

The King is also the sole judge where markets and fairs
should be kept; and therefore it has been laid down, thqt if he
grant a market, to be holden in any particular place, which
happens to be inconvenient for the public, yet it must be
holden in the place appointed by the King (*). If no place
be specified in the grant on which the market or fair is to be
holden, the grantee may keep it where he pleases, so that he
do not prejudice the rights of other grantees or create a nui-
sance to the public Where the grant states that the fair or
market shall be holden in any particular town, &c. it may be
held in any part of it ; and though the grantee hold it for up-

<«) Paget Case, 5 Co. Rap. 53. (ft*) 3 Burr. 1817.

(a) 8 In*. 480. (e) 3 Mod. 137. ft RoL Ab. 140.

(c) Hob. 88* 17 Vm. Air. 143, Pro- Bac. Ab> Fain, B.
fog. H. C.

o wards

194

Marts, <jp.

[Ch.X.Sec.IL

wards of twenty years in one spot, he may remove to another
within the precinct of the grant. And where a market is
granted generally to a corporation, they may remove it to any
place within the limits of their jurisdiction, though immemo-
riallyholden in a certain place (a). By the statute 19 Edw. L
c. 5. no fairs or markets shall be kept in churchyards.

It is most important to remember that the King does
not grant a market or fair without a writ of ad quad
damnum being previously executed (£). Even if that be
done (c), the Crown cannot enable a subject to erect a market
or fair so near that of another person as to affect his interests
therein, though the new market or fair be holden on a differ*
ent day, or which occasions a damage in any respect to the
public (d). Nor can the King grant that a shop shall be a
market overt (e). The mode of avoiding grants from the
Crown will be considered hereafter (/)* It may not be irre-
levant to remark, that if the grantee of a market under letters
patent from the Crown, suffer another person to erect a market
in his neighbourhood, and use it for the space of twenty-three
years without interruption, he is by such user barred of his
action on the case, for disturbance of his market; but this pre*
sumptive bar does not it seems apply against the King (g). '

By the general grant of a market or fair, the grantee is au-
thorized to hold, without any express words to that effect, a
court of record, called the court of pie ponders, as incident to
the market or fair, and for the advancement of justice there-
in (h). But toll is not incident of common right to a fair or
market ; therefore, if the King do not expressly authorize the
grantee to take it, he cannot legally do so, though the grant
contain the words * with all its appurtenances/ and in such case
the market or fair is free (i). Where, however, an old market
or fair, in respect whereof toll was due by prescription, comes

(a) 3 Mod. 108. 3 But, 538. 1
Selw. and B. 67.

(*) Bac Ab. Fain, A. Bat*. 1818.

(*) ft Ventr. 344.

(d) 2 Saund. 174, n. 2. 2 Inst 406.
Com. Dig. Market, C.

(a) Mo. 625. See 4 Taunt. 524.

(/) See'poftcfa.12.8. 3;ch.l6. s.5.
See alao Burr. 1812, aa to afivo Warranto
for letting npa market without authority.

(g) 1 Bos. and P. 400» 2 Saond.
175, note. 3 East, 298. 6 Ibid. 456.
See post, co- 14. as to the £ro»n being
barred.

(a) 2 Inst. 220. 4 Ibid. 272. BaC.
Ab. Fairs, C 4 Taunt. 533. Nature
•fit, Com. Dig. Market, 6.

(i) 2 Inst. 220. 2 Lutw. 1336. Pal-
mer's K. 78. Wood's Inst 292. 6
East, 438, note. Stra. 1171.

to

Ch.X.Sec.II.] Marts, %c. 195

to the King, and he grants the market eumpartimentiis9 the toll
passes (a). The King may clearly enable the grantee to take
a reasonable toll ; and, it seems, the exact toll to be taken need
not be specified in the patent (b)9 and that usage may fix the
identical charges (c). However, apt and certain wotds must
be used in the grant, if it profess to point out what toll is to be
taken ; and, therefore, a grant of such toll to be taken at two
bridges, as is used to be taken, * ibi et aWn infra regnum An*
glice, has been held uncertain and void (d)> The King may,
after he has granted the fair or market, grant to the patentee
the right to take toll in respect thereof; but in such case
there must be a quid pro quo, some proportionable benefit to
the public (?);

If an unreasonable toll be granted, the patent is void as to
the toll, in toto, and the market or fair becomes free (/). So,
if the patentee of a market oar fair take outrageous toll, (the
reasonableness of which, under all the circumstances, is a ques-
tion determinable at law (g) ), he forfeits the whole toll mju£ur*t
and die King may, on office found (A), seize the market or fair
into his own hands til it be redeemed (i)* But the market or
fair itself is not forfeited in such ease (A). Toll cannot be to-
ken for goods not brought to a market, or sold therein by sam-
ple only (/).

. The King is not liable to pay toll («), nor u he bound by a
sale in market overt (ft). He may grant an exemption from
tolls due to himself, or which may thereafter become dm in
respect of a subsequently granted fair or market, but not from
toll due on account of an old fair or market (o).

As just observed, a market or fair is not absolutely forfeited

(<0 Palmer's R. 78. (rf) Cro. Jac 421.

(*) See Ibid. 86. This was the opi- («) 9 Inst. £20. Cro. Bl. 558 ; 50L

Bkm of three judges. See also the Re- Moore, 474. 4 Taunt 519, 520.

^ister, p. 103. But Montague, C. J. (/) 2 Inst. 22a 2 Lntw. 1336.

held the contrary ; and in Palm. 79, (jg) 2 Inst. 222.

said that it was agreed by Popham in (A) 2 Ibid. 221.

Heddy's Case, (see Heddy o. Wheel- (s) Ibid. Pal. 82. Com. Dig. Man-

house, Cro. £1. 558, and 591.) that the fat, L

King ought to determine the quantum of (k) Ibid,

toll, Moore, 474, S.C. In Osbuston v. (/) 4 Taunt. 520.

James and others, 2 Lot*. 1377, the (m) 2 Inst. 221, 2 Rol. Afc 1$$.

same objection was taken; but judg- («) 2 Inst. 713.

ment was given on another point. (o) Ibid. 2$1. Baa An* Fairs, IX 2.

(r) 5 East, 2.

o 2 by

196

Weights.-Coin. [Ch, X. Sec. II.

by the grant of unreasonable toll, or by the owner taking such
toll. It seems also, that it is not forfeited by the owner hold-
ing it longer than the time allowed by the patent, the statute
2 Edw. 3. c. 15. merely providing, that the King may in such
case (on office bound (a) ), " seize the fair into his own hands*
there to remain till the owner pay a fine, &c." which implies,
a seizure and not a forfeiture (&)• It appears, however, that if
a market or fair be holden on a different day, and not at all on
the day allowed, or if there be any abuse in a matter by law,
incident to a market or fair, as in the court of pie powders, an
absolute forfeiture is incurred (r).

3. The regulation of weights and measures, is ranked by Sir
William Blackstone among the rights of the Crown (d) ; but,
(as observed by Mr. Christian,) with some degree of impro-
priety ; for, from Magna Charta to the present time, there are
above twenty Acts of Parliament to fix and establish the stand-
ard and uniformity of weights and measures (e).

4. As to Money, Coin, fyc. — As the regulator and protector
of commerce, of which money is the medium, the King alone
is entrusted ' with the right to coin money, to fix its denomina-
tion or value, and to render it current (f). His Majesty may
legitimate foreign coin, and make it current here, declaring at
what value it shall be taken in payment (g\ and may, at any
time, decry any coin of the kingdom, and make it no longer
current

This prerogative may be considered with reference— 1st, to
the materials ; 2dly, the impression ; and, Sdly, the denomina-
tion or value of coin.

1. Sir Edward Coke asserts (h) that the money of England
must consist either of gold or silver, and none other was ever

(e) 2 In*. 222.

(A) Ibid. Sec Com. Dig. fefarket, L
2 Rol. Ab. 124. A similar construction
has been alio applied to tbe statute
Westminster 1. c. 31. as to taking ex-
lire toll. Ante, 195.

(c) fbid. Palmer's R. 82.

(d) \ Bla. Com. 274.
,(«) Ibid. 27$, note 16. See Magna

Charta, cb. 25, and tbe statutes cited
3 Bac Ab. 113, title Fairs, C.

(/) 5 Co. 114. Dar. 19. 2 Rol.
Ab. 166. Plowd. Com. 316. 1 Bla.
Com. 276. Hal. Hist. P. C. 188.

(g) 1 Hal. P. C. 197. 1 Bla. Com.
278, see 1 March 6. 5E1.&11. 18
EI. c 1 . 43 Geo. 3. c 139. s. 3.

(A> 2 Inst. .577.

issued

Ch.X. Sec.IL] Coin. 197

issued till 1672, when copper farthings and halfpence were
coined by Charles 2. and ordered by proclamation to be cur-
rent in all payments under the value of sixpence, and not
otherwise. But this copper coin is not upon the same footing
with the other in many respects, particularly with regard to
the offence of counterfeiting it (a). It seems therefore that
the King may make money of other materials than gold, silver
or copper, though such money would not in various respects be
protected by laws which relate to other coin*
. 2. As to the impression, the stamping thereof is the unques-
tionable prerogative of the Crown ; for though divers bishops
and monasteries had formerly the privilege of coining money,
yet, as Sir Matthew Hale observes (i), this was usually done
by special grant from the King, or by prescription, which
supposes one ; and therefore was derived from and not in de-
rogation of the royal prerogative. Besides that, they had only
the profit of the coinage, and not the power of instituting either
die impression or denomination ; but had usually the stamp
sent from the Exchequer.

3. The denomination or value for which the coin is to pass
current, is likewise in the breast of the King; and if any
unusual pieces are coined, that value must be ascertained by
proclamation. In order to fix the value, the weight and
the fineness of the metal are to be taken into consideration to-
gether. When a given weight of gold or silver is of a given
fineness, it is then of the true standard, and called esterling or
sterling metal (c).

Whether the King can legally change the established weight
or alloy of money, without an Act of Parliament, seems not to
be quite clear. By the statute 25 Ed. 3. st 5. c. 13. it is
" accorded and established that the money of gold and silver
which now runneth, shall not be impaired in weight nor in
alloy; but as soon as a good way may be found that the same
be put m the antient state as in the sterling." Lord Coke (d)9 in
his comment of articuli super cartas, ch. 20, 21. cites, among
other acts and records, this statute of the 25 Edw. 3. and the
Mirror of Justices, ch. 1- s. 3. (" Ordeinjuit que nul roy de ce

(a) 1 Bis. Com. 277. (e) Ibid. 278, trod tee Ibid, note 10.

(A) 1 Hist. P. C. 191. 1 Bit. Com. Folketon English Coins.
$77. (d) * Inst 575, 577.

realme

198 C6hL [Ch.X.Sec.IL

realme nepoit changer sa money ne impayre fie amende* ne untre
money fabre que de or ait cTargent, sans assent de touts ses
counties") in support of his opinion against the King's right
to alter money in weight or alky* Lord C* J. Hale (0} differs
with Lord Coke, and relies 1st upon the * ease of mist mo-
nies (b) ;' 2dly, on the practice of enhancing the coin in point of
value and denomination, which he observes has nearly the
same effect as an embasement of the coin in the species; and
lastly, on the attempts which have been made to restrain the
change of coin without consent of Parliament. In the case
reported by Sir John Davis, it appears that Queen Elisabeth
sent into Ireland some mixed money, and declared by procla-
mation that it should be current and lawful Irish money* This
money was certainly held to be legal coin of Ireland ; but it is
most probable that as the case was in Ireland, the statute of
25 Edw. 3. and the other Acts cited by Lord Coke, were not
considered in discussing it; as it is clear from one of Poyning's
laws (c) they might have been. And it is a fair presumption
that those statutes were not brought before the Court, no men-
tion being made of them, though Sir M. Hale himself admits
that the statute of Edw. 3. is against his opinion. As to the
practice mentioned by Lord Hale of enhancing the coin in
point of value and denomination, that seems very distinguish-
able from altering the species or material of coin, by changing
its weight or alloy. Even admitting the existence of a practice
to imbase coin in the alloy, still * little importance will be at-
tached to it, when it is remembered how frequently some Kings
have endeavoured to extend the limits of. their prerogatives.
The attempts which have been made to restrain the change of
coin without consent of Parliament, prove but little in favor
of Lord Hale's opinion ; for those attempts might have been
so made in order to restrain the exercise of a prerogative which
was denied, and it does not appear that they were made in
order to overturn a prerogative, the legal existence of which
was admitted. The authority of Sir Win, Blackstone may
perhaps turn the scale in favor of Lord Coke's opinion, if
that opinion required it He observes (d)* " that the King's

(«) 1 Hal. P. C. 192. 22. 1 Bla. Con. 103. 4 but. 351.

(6) Davis's Rep. 1 8. 8 State Tr. 343.

(r) See Irish Statute, 10 Hen. 7. c. (<Q 1 Bla. Com. 27&.

prerogative

Ch.XL] Revenue. 199

prerogative seemeth not to extend to the debasing or enhancing
the value jof the coin below or above the sterling value, though
Sir Matthew Hale appears to be of another opinion." It need
only be added, that the statute 14 Geo. 8. ch. 92. seems to
furnish an inference that the standard weight of &e gold and
silver coin of the kingdom is unalterable* but by Act of Par-
liament. If Lojrd Coke's opinion be correct) it seems, as laid
down by Sir Wife Blackstone (a\ that the King must fix the
value of foreign money, rendered current in this country, by
comparison with the standard t>f our own coin; otherwise the
consent of Parliament wiU be necessary.

No proclamation seems- necessary to the legitimation of
money coined by the royal authority in this country (&), unless
unusual pieces be coined (c) ; but such proclamation is essen-
tial to the legitimation of foreign coin made current here.

CHAP. XL

Of the Prerogative as to the Revenue.

The power of a state must greatly depend on the income it
possesses (<£)• If it enjoy a considerable and unencumbered
revenue, it can employ a larger proportion of its subjects to
carry on war, or may cultivate to more advantage the arts of
peace, when unembarrassed with hostilities : whereas, with a
small income, it can neither reward the services, nor encourage
the exertions, of its people ; and it must principally trust, both
for its improvement and protection, to the natural activity of
mankind, or to the voluntary and disinterested zeal of public-
spirited individuals.

But, however numerous the advantages of a great revenue,
they are dearly purchased if they cannot be procured without
oppression. A certain share of his annual income no indivr-

(a) 1 BU. Com. 278. work on the Revenue of Great Britain,

(b) 1 Hal. P.C. 196, 7, 8. See vide vol 1. ch. 1. pagel. Thesaurus Regis
Davis's Rep. 19. est fundamentum belli etfirmamentompa-

(e) 1 Bla. Com. 278. cis. Co. Lit 131, b.

(d) See Sir John Sinclair's excellent

dual

406 • Revenue' £GK.XL

ifimlWfrrrflise'torc6ritnbiite, for the general purposes of the
State.'' Sometimes, also, a slight additional burden may prove
kh Attentive tb labour, n.ti&'ki>pur to greater diligence and at>
Ctitrjr. 'Butfifthe loAd bectarie too heavyj either ih consequence
bfthe greatness of the amount, or the impolitic mode of tayiftg
it on,' the industry of a nation dhmnishes, its wetdfli necessarily
disappears, the number of its. people decreases, and the greater
the occasion it has for resources, the fewer it will actually ettr
Joy. r

The constitution has vested a revenue in the King, in orde*
to support his dignity, and maintain his power; being a portion
which each subject resigns of his property ih order to secure
the remainder (a).

This revenue is either— 1st, ordinary, that is inherent in
the Crown ; or, 2dly, extraordinary.

Before the Revolution, the wants of government were princi-
pally supplied by various ordinary lucrative prerogatives inhe-
rent in the Crown, and which had existed time out of mind.
After that event, which introduced England to an expensive
ttohthigntal warfare, it was discovered that such resources were
Very inadequate to the expenditure of the country, hot so much
on account of die decay' which had befallen them, arising
either from the profusion of the Court, the rapacity of favo-
rites, or the negligence or treachery of officers; as from the
unexampled magnitude of the wars, and the gigantic extent of
the views and attempts of the government. A complicated
system of taxation and finance was commenced, to which our
ancestors were strangers, and which has been gradually, and
perhaps necessarily, carried to an extent which may be consi-
dered alarming, unless wisdom and prudence regulate its pro-
gress, *Hd a continued peace prevent its increase, and gradu-
ally ameliorate the burthens it imposes. If that .can be effect-
ed^ it is a consolation to reflect, that the inhabitants of England
have nogrejct reason to regret (especially since the repeal of the
income tax) the change which has taken place in the system
and mode of supplying the exigencies of the State. History
fhmishes'a most painful account of the endless, oppressive, and
cruel hardships borne by the subject, in consequence of the
military tenures, she grinding extortions of tyrannical adminis-

(«) i ait. com. nu

trations,

Cb.XI.] Revenue* SOI

tratkms, and the disgusting exactions of papal authority, Some
of these were partly founded in law; but -the grand defect of
the system was, that it afforded excuses for the oppressions of
tyranny, and was grounded on principles inconsistent with the
freedom of the constitution* It is true, observes Sir John
Sinclair (a), that these burdens did not exist at once, and that
sometimes one mode of exaction prevailed, which in process of
time was abandoned in fiwror of another. But, whatever the
landatores temporis acti may say, it must be evident to every
impartial person, that our ancestors had great reason to be
dissatisfied with their political situation, even in the article of
taxation ; and perhaps the present ara is, in that as well as in
many other respects, as desirable a period to live in as any
that can be pointed out in the history of this country; our ad-
ditional weight of taxes being fully compensated by a more
extended commerce, by improvements in every branch of sci-
ence and of art, and by great accessions to our wealth, our se-»
curity, and our freedom* Though complaints have sometimes
been made of the increase of the civil list, yet, if we consider
the sums that have been formerly granted, the limited extent
under which it is now established, the revenues and preroga*-
tives given up ,in lieu of it by the Crown (J), the numerous
branches of the present royal family, and (above all) the dimi-
nution of the value of money compared with what it was worth
in the last century, we must acknowledge these complaints to
be void of any rational, foundation, and that it is impossible to
support that dignity which a King of Great Britain should
maintain, with an income in any degree less than what is now
established by Parliament

It is observable, that a portion of the revenue is exclusively
devoted to the support of the King, and his personal establish-
ment and dignity ; the rest is appropriated to the public ser-
vice. The ciyil list is indeed properly the whole of the King's
revenue in his own distinct capacity ; the rest being rather the
revenue of the public, or its creditors, though collected and
distributed again, in the name and by the officers of the Crown,
it now standing in the same place as the hereditary income
did formerly; and, as that has gradually diminished, the par-

(«) 1 Vei. 57. (*) 1 BU. Com, 333.

liamentaiy

S02 Revenue. [Ch.XL Sec. I.

liamentary appointments have increased (a). It is a most im-
portant principle of law that the King has no prerogative
power of taxing his people ; that can only be affected by Act
of Parliament*

SECT. I.

I. The first four of the Kong's ordinary revenues, viz. the
custody of the temporalities of bishops, corvdies, tithes of
extra parochial places and Jlrst fruits and tenths (the last of
which no longer exist as a Crown revenue), are of an ecclesias-
tical nature, and have been already considered.

II. In considering the ordinary and inherent resources aris-
ing from immediate Crown possessions, and rights peculiar to
die Crown, we may Mention,

1. Hie profits accruing from the demesne lands of the
Crown. The demesne lands, terrce dominicales regis, of the
Anglo Saxon monarchs were very great : a circumstance not
difficult to be accounted for. The kingdoms of the Heptarchy
were founded by chieftains, who commanded troops attached
to them by die ties of consanguinity, who were born with an
hereditary regard for the family they represented, or were led
to join in the incursion, from the high idea they entertained of
their courage, character and good conduct. In other words,
they were the heads of clans or little tribes, such as now exist,
among the Tartars, and some vestiges of which still remain in
the mountains of Scodand. Such commanders, it is probable,
would claim a considerable share of the territory that was
conquered; and as, besides the plausibility of their original
pretensions, it was discovered, in the course of the war, that
many advantages resulted from subordination on the one hand,
and pre-eminence on the other, it was natural to suppose, that
a considerable portion of the new acquisition would be given
to the leader, not only to preserve so useful a pre-eminence,

(•) 1 BUu Com. 332.

7 but

Ch.XI. Sec.L] R&oenue. 203

but alto to support the dignity of his office, and to reward life
valour in the field. Thus each petty monarch of the Hep-
tarchy came to be possessed of a landed estate of great value
and extent; and when all the domains of these different king-
doms united to enrich one Sovereign, the whole must have
yielded a* very considerable revenue. Considerable additions
must have arisen from the extensive confiscations of manors
and lordships, &c. which subsequently took place in times of
civil cdmmation and rebellion (a).

But whatever might be the original value and extent of the
landed property of the Crown, and however great the acces-
sions which it might receive, and though the strictest laws
were enacted to prevent its alienation, and to check encroach-
ments, yet the royal domains of England have shared the same
fate with those of other countries, and hardly a vestige now
remains of the extensive property which William L and some
of his successors were possessed of; in consequence of the
numerous royal grants ; arising from the generosity, the weak-
ness, or profusion of the Crown (b). This frequently occa-
sioned the interference of Parliament, and particularly in the
reign of Queen Ann (c) ; after William 3d. had greatly impo-
verished the Crown ; an Act passed to restrain the alienation
of the Crown lands, and subsequent provisions have been made
for the same purpose. By the statute of Ann, grants, leases,
or other assurances from die Crown, of any tenements, except
advowsons of churches and vicarages, " in England, Wales or
Berwick upon Tweed," belonging to the Crown, " whether in
right of the Crown of England, or as part of the principality
of Wales (d)9 or of the duchy or county palatine of Lancas-
ter^), or otherwise howsoever", for any longer term than
thirty-one years, or three lives, are declared to be void : and
no reversionary lease can be made, so as to exceed, together
with the estate in being, the some term of three lives or thirty-
one years ; that is, where there is a subsisting lease, of which
there are twenty years still to come, the King cannot grant a
future interest, to commence after the expiration of the for-

(«) Seel Sinclair 19, and 1 Bla.Com. (c) 1 Ann. st. 1. c 7. s. 5.

*86. (<0 See 54 Geo. 3. c. 70. s. 8.

(*) Recital 1 Ami. st. 1. c.7. i. 5. M 34 Geo. 3. c.75. f.20. 47 Geo.

1 Sinclair, 2p\ 3. sua. 2. c. 24.

mer,

' 1

40*

Revenue*

[tt.XI.fcbf.

mer* fot my longer term than eleven years (a). The tenant
must also be made liable to be punished for committing waste;
and a fair and reasonable rent must be reserved (ft). The
8th section of the Act excepts its operation in the cases of
grants, &c. in the duchy of Cornwall, according to statute
IS andl 5 Win. 3. c. IS. of grants and restorations of forfeited
estates; of grants, &c. of lands seized on outlawry or Crown*
process; of grants and admittances which of right or custom
ought to be made of copyholds, parcel of Crown manors ; and
in the case of trustees for sale of fee-farm and other rents ac-
cording to certain statutes (c). By the 84 Geo. 3. c. 75. the
King may grant lands for building for any term not exceeding
ninety-nine years or three lives at certain fines and rents, and
on certain terms (d) : and Crown leases are not to be renewed,
till within a certain number of years prior to their expira-
tion (e).

~ The statutes do not however prevent an exchange of Crown
lands for lands of equal value (/). And by the 39 and 40
Geo* 9»c $8. exceptions are made to these statutable provisions
atkt restrictions, in the case of lands and tenements purchased
by the Crown otit of the privy purse, or other monies not ap-
propriated to any public service ; or which come to the King
dir his successors, &c. by the gift or devise of, or by descent,
or otherwise, from his ancestors or private persons. These
his Majesty may grant, sell, give or devise, as his subjects may
their property : but if not entirely disposed of by grant, will
or otherwise, the same, or the estate therein undisposed of,
jhall, on the demise of the Crown, descend, as if the Act
were not made, and subject to the restrictions in the statute

(a) ) Bla. Com. 286, 7.
r (*) 34 Geo. 3.c 75. s. 4.

(c) As 22 Car. 2. c. fi. 23 Car. 3.
c. 24. See 19 Geo. 3. c 45.

(d) SO* other cases of charitable m-
atltqtionst&o. in which the King may
grant leases, reserve rent, frc. 46 Geo.
3. c. 151. As to ascertaining rent
where houses to be rebuilt, 48 Geo. 3.
c. 73. s. 23. And as to leases of pro-
t*rty a» uncertain in its produce, see 48
Ctoot *tr-«vl3. 1 91. By 26 Geo. 3.
c. 87. amende*' b£ 3D Geo. X c.50.
potmmjsffeaers were appointed to inquire

into the state and condition of the woods,
forests, and land revenues of the Crown,
and to sell fee-farm and other injmproT-
able rents. And see 34 Geo. 3. c 75.
See grant of palace, &c. in Greenwich
Park* 47 Geo. 3. sets. 1. o. 52. s. 2.
Forest of Brecknock, 55 Geo. 3. c.190.
see further 57 Geo. 3. e. 24.

(•) Crown leases for gardens, Sec.
bow renewable, 48 Geo 3. c. 73. s.4.
Purchase and surrender of Crown leases,
55 Geo. 3. c. 55,

(/) 1 Bla. . Com. .287, n. (52.)
<Archb. ed. cites Vin» Abt

of

CLXLSecL] Rei#we< 80*

of 1 Ann, fcc iouj the 6th section objects 8U(hlwi^ bcki
to taxes, whilst they belong to the Crown, &c. Copyholds ^nd
leaseholds which thus come to and are vested in the Cr^m\f)t
are by section 2. vested in trustees appointed by the Crown (o$.:

Even at common law, the leaning and endeavour seems
always to have been to preserve entire and to keep in the
possession of the Crown its demesne lands and possessions* *#
materially conducive to its dignity and honour. Various e*r -
ceptions in favor of. the King's grants of lands from comma* .
law rules, are occasionally to be met with (4); and Sir Wm«.
Blackstone regrets that the legislative restrictions on the alien-
ation of Crown lands were made " too late, and after almost
every valuable possession of the Crown had been granted away
for ever, or else upon very long leases ; but such restrictions
may be of some benefit to posterity when those leases come to
expire (c.y

The King has two capacities, the one natural and the other
politic ; and the general rule seems to be that tbelattet shaU;
prevail, so that lands given to the. King and his 'heirs shall
descend, as if they were given to him arid bis successors ffl*
Even at common law, the rule seems to have been* that knds
and possessions whereof he was seized Jure corona i (as pur*
chases made after assumption of the Crown, tenements which
have usually been annexed to the Crown, acquisitions by con-
quest, &c) shall secundum Jus corona attend upon and follow
the Crown. Therefore to whomsoever the Crown descends,
these lands and possessions descend also, and not to another,
who might otherwise be heir at law to the King in his natural
capacity ; the lands and the Crown being concomUantia (e\
Hence if an usurper purchase lands, and the right heir resume
the Crown, he shall have the purchase: ei e converse f an usurper
shall have the purchases made by a rightful King, so long as
he has the Crown (/)• So if lands in gavelkind descend to the
King and his brother, the King shall take one moiety and his
brother the other ; but when the King dies, his moiety shall

. ■ • » K

r

(«) See 56 Geo. 3. c. 16. which re- (c) 1 Bit. Con. 267.

galates offices for the receipt of Crown (tf) 1 Ky& 74.

rents. (e) Co. Utt. 15, h. and n. 4* J6, a,

(*) See Co. Lit. 21, b. 5 Bac. Afcv 7 Co. 10,12. 9 Co. 12*. Fl^r* 21$*

$59, tit Prerogative, F. 3, Jtc (/) Co. tit. 15, b. not* 4. .

6 . . . desmid

206 Revenue. [CiuXL Sec. I.

descend to his eldest sen* and not according to the rules of
descent in gavelkind ; for the King was seized of his moiety
jure wrome, therefore it shall attend the Crown, and conse-
quently go to the eldest son (a). As observed by Lord Holt,
" the King can have nothing in his natural capacity,, unless
in right of his duchy or an estate-tail, by the statute de donis,
and duchy lands would now be in the Crown, if not kept separ
rate by (6) Act of Parliament (c)" It was laid down by Lord
Hale (d), that " purchases made before accession of the Crown,
or descents from collateral ancestors after descent of the Crown,
vest in a natural capacity ; and that therefore in the re-ademp-
tion of the Crown by Edward 4. there was a special Act to
give to the King all the possessions of Hen* 6. But such lands
are qualified and affected differently from those of other per-
sons. They will pass by letters patent only and without
livery ; and the grants of them shall not be effected by nonage,
ct similiter" We have just seen, that though lands purchased
out of the private monies of the Crown, or which came to the
Crown by descent, &c may be granted and devised, &&; still
if no such grant or devise be made, they descend with the
Crown on the decease of the Kings and the restrictions which
m general obtain, in whatever capacity the Crown lands are
balden* then apply. As Crown lands in general descend
in the same manner as, and witl* the Crown, it will be su£>
ficient to refer ^to the first chapter far information on the
subject.

, We have already mentioned the sovereignty of tke Crown
over the seas and navigable rivers within his dominions. The
King is also by his prerogative* on principles of expediency or
as, lord paramount of the soil, the owner of such lands as are
covered by the narrow seas adjoining the English coasts, or by
anas of the seas or navigable rivers, within Jiis dominions (e) ;
and is therefore entitled to maritima incremen&h or lands which
increase by the casting up of sand and earth from the sea. If

(a) Plowd. 905, a. Co. lit 15, b. tali modo ft per tola qffiaariot tt minis-

(£) The statute of 1 Hen. 4, provide*, trot gubementuret Hoc'

that when the duchy lands come to the regue amenfti minim$ fuutctd. Baym

King, they shall not be under snch go- 90.

vernment and regulations as the de- (c) 7 Mod. 78.

mesne* and possessions belonging to the (d) Co. Lit. 15, b. mote 4.

Crown, for the Act jays, Stood taBter et («) Ante, ch. 8. * 2. dir. 7. Fisheries.

indeed

Ch.XL Sec.L] Revenue. so?

indeed such increase be so insensible dial it cannot be fajr tty
means ascertained that the sea was. there, the King has. no
claim to land so increased, and the ovner off the adjacent
property is entitled thereto (a).

So the King by his prerogative is entitled to such lands as
become derelict by the sudden desertion of the sea, or a river
where there is a flow of the sea; and such lands belong im-
mediately to the King, because they never were apportioned
put to any of his subjects (4). But the King is not entitled to
lands left dry by a river in which there is no tide ; for such
lands are supposed to have been distributed oat as other lands,
and therefore belong to the owners of the soil on both sides(c).
Nor can the King claim such lands as are regained from the
sea after having been covered by it several years, if the former
owner can recognize the land which belonged to him, before
his land was covered by the water ; for in this case an owner
being found, the King's title which depended on the want of
such owner, is excluded (d)+ As to the islands arising de novo
in the King's seas, or the King's arms thereof (that is called
an arm of the sea where the tide flows and reflows, and that
only (<?) ), these jtrmd facie and of common right also belong
to the King, for they axe part of that soil of die sea that
belonged before in point of propriety to the King ; for when
islands de novo arise, it is either by die recess or sinking of
the water, or by the exaggeration of sand and slab, which in
process of time grow firm land environed with water; and thus
some places have arisen, and their original recorded* as about
Ravesend in Yorkshire (/).

The King is also, by his prerogative, the primi facie owner
of the shores, (that is the land which lies been high and low
water mark, in ordinary tides (g) ), of the seas and navigable
rivers, and arms of the seas, within his dominions (h), A sub-
ject

9

(a) Hale de jure Mam, c.4. (A) Ibid. The shore may not only

(*) 8 Rol. Ab. 170. Dyer, SS6. Hale Wong to a subject in grow, wbieh pos-

de jaw Maris, c. 4. «Wy may suppose a giant before time

(e) « Rol. Ab. 170. * meraoiy, but it may be parcel of a

. (rf) 8 Co. Sir Francis Barrington'i ****** And the evidences to prove

Case. this fact ar* commonly these; constant

(e) 29 Ass. 93. and «»ual fetching gravel and sea-weed,

(/) Hale de jure Maris, c. 4. andsea-«nd,between the high-water and

lo\ ibid. low-water marl! and licensing other* to

^ do

808

Revenue.

[Ch.XLSec.1.

ject may by custom or prescription, be entitled to ground
added to his land by sand and earth from the sea; but custom
cannot entitle a subject to lands deserted by the sea, or an arm'
thereof (a). The reason assigned for this distinction is, that in
the former instance, the accession or addition of the land by
the sea to the dry land gradually, is a kind of perquisite;
whereas, in the latter case, the land, as it belongs to the King
when covered with water, cannot become the property of the
subject, merely because the water has left it, though this
reason for the distinction is not perhaps very satisfactory.
Where the interest in a creek, arm of the sea, or districtus ma~
risj is, by charter or prescription, vested in a subject, he is en-
titled to claim all those rights which the King is entitled to,
as owner thereof; and, therefore, such prescription does not
merely give a liberty or profit, apprendre9 within such creek,
&c ; but the party prescribing will be entitled to lands forsaken
by the water, or islands arising therein (6).

The King is a sole corporation, capable of taking mere chat-
tel interests in succession (c). Consequently, a fee passes on a
grant to the King without the word * successors (d) ;' and a grant
by the King, without mentioning successors, binds them (e).

The Crown possesses peculiar prerogative privileges, with
respect to distresses for rent due from its tenants. At the com-
mon law, if a grant of land or rent were made to the King, be
can distrain without attornment by virtue of his preroga-
tive(/). And he may distrain for a rent-service, fee-farm,
rent-charge, or even a rent-seek, though it vest in him not by
grant, but by escheat upon attainder, not only on lands out of
which such rent is reserved, but on all other the lands of
the tenant, although held of other lords ; provided the lands
distrained upon be in the actual possession of his tenant,

do m> ; inctottog and imbanking against
the Ma ; and enjoyment of what 10 fo
inned ; enjoyment of wreck* happening
upon the tand ; praMotment and pa*
nitbmentof purprettum there, In tht
Canrftof a manor and men like. Ibid.
80 agreed in Sir Henry Conotable'i case,
5 00.107. 5 E.3. 3 Dyer, 38$, b.
80 la the Exchequer Chamber, P. 16.
Car. inter I' Attorney Qanerall et Sir
Samuel Ro*b, Sir Richard Buller, and

Sir Thomas Arundel, per om&es ba-
ronet, 5 Bac. Ab. 499.

(a) Hal de jure Maris, c. 6.

(*) Ibid.

(c) Co. Lit. 90, a, 11 Co. 94, a.

(tf) Co. Lit 9. Ptowd. 850. Jenk.
909, 871.

(e) Plowd. 176. YelT. 13.

(/) Co. Ut.309. May di»tr»» for an

amerciament in a Court Baron. Cro.
El. 7*8.

for,

Ch. XI: Sfee. IJJ Revenue. aogr :

fbrV IF'tfie/ fceniniferlet* for •yeari' or ftt'%ftf, 'the undi-tei\ant,s' '
^fifects are not Kdble to the KSiiff (a). The King may, tiowe£"'
vet, distrain <m lands* so underlet itfier hi£ rent distrained For "*
ac£ttred " dtte \ b). "And'thfe King may distrain in the high-

In general^ this prerogative is peculiar to the Crown, and its
grantee cannot exercise it(<f). But even at common law, if
the King granted to a subjebt a reversion Or services, the estate "
passed immediately without attornment, and the grantee might
distrain (?), unless in the case of lands held of the Duchy of "
Lancaster, and not situate within the county palatine {/). And
by 1&rce of the statute 22 Car. 2. c. 6. for the sale of Crown fee-1
farm rents {g\ the vendees of such rents may distrain on all
die lands of the original grantor. And, it seems, that either
the King or his vendees, may make such a distress, although *
the 'lands distrained upon be under a sequestration out of
Chancery (A). ' " j -

' It seems that the tenant may replevy on the Crown distress
for rentff), though a replevy on a distress for a fee-farm rent
or other duty to the Crown (A), or on a seizure in order to con-
demnation (J), is not, it appears, allowable,
: As the King may distrain on all his tenants' lands, he may
reserve rent out of inheritances which are incorporeal, as com-
mons, tithes, fairs, &c. (m). So the King may, contrary to the
general rule, reserve rent payable to a stranger (n). But where
theTQng made a lease of his house, belonging to his house-
keeper, of Whitehall, reserving a rent to the house-keeper for

(a) Bro. Prerog. pi. 68, 77. 2 lost . (g) And see 26 Geo. 3. c. 87. 30

132.' 4 Ibid. 119. 3 Leon. 124. 4 Geo. 3. c. 50. 34 Geo. 3. c. 75. Bat

3ep,<M. Pfowd. 227; 16 Via. Ab* not entitled to process of extent 2?

,513, 4. tit* Prerog. F. Bnc. Ab. Pre- Car. 2. c 6. s. 8.

rog. K. 3. 2 Vernon, 714. (k) 2 Vera. 713. 1 P. Won. 306. *

f <6) lRol. Ab. 670. Bradby on Distr. . (i) Bro. tit Bepl. pi. 51. per HideXo

**. the Lords. 3 Rosb. -1861. Bw?.-Abw

<*) 2 Inst 131. ReplejumC f

>

(<0 Bro. tit. Prerog. 68. Vitu ubt (*) Boob. R. 14.

wpr*. (/) ^Anstr. 212. .,«*«•••

• \e\ 1 Rol. Ab. 291, Bradby Distr. • (m) Ibid. Go* lit 4Tf «. n. f„ ' • -
93. • (») Moor, 160.: Co. liL 143, b. -2' '

• </) Co. JL2WU4, *- Plowd. 221. Rol. Ab. 447. .

4 lost 209. . , •..-.. .i .■*•!!*: ♦

% ,... \ . the-

i» * ■

210 Revenue. [Cb.$t Sec. I.

the time being, it was held an ill reservation; for though the
King may reserve rent to> a stranger, he cannot reserve it to
an officer who ia removeable pt hi* will (a)*

If the King make 4 lease reserving renfe with a clause of re-
entry for nonpayment, he is not bound to make any demand
previous to his re-entry, but the tenant is obliged to pay die
rent, for the pregcpvatiop of his estyte; because it ia bgftgfrth
the royal dignity to attend * subject to denial ^ *3flt J but
the law, for the siqaport of that dignity, obliges every private
persdn to attend the King with the services due to hiin(£).

But if the King, in cases where he need not mate a demand,
assign over the reversion* the pptenfttq cannot enftr for no&i
payment ' without making the regular previous demand ; be-
cause, tins privilege being inseparably annexed to the per-
son of the King, for the ffipport of hj$ royal dignify, shall
not be extended to wsc? wfceje th* IQng is. no way Con*
cerned (c).

So, if a prebendary make a lease rendering rent, and it be
provided that if the rent be inazreprand be demanded^ it shall
be lawful Ibu. the prebendary to re-enter; if th$ reversion,
in this case come <p th$ King, he must demand the; reni
9*jn e^nunon CQsefe thtttgh ha shall by his prerogative be
excused from an implied demand ; for th? implied d^mandl is
the a^ of the law, the ntta the expree? agreement of the
parties, which the King's prerogative qhail not de£pf& $umJ
therefore even w* the case of the King, if he rnqke a leasp rer
serving rent, with a proviso that if the r^nt be in arrear for
such time (being lawfully demanded, or demanded in due
form), that then the lease shall be void: it seems that not only
the patentee of the reversion in this case, but also the King
himself* whilst he continues the reversion in his own hand*
is obliged to make an actual demand, as in ordinary instances,
toy reason, of the express agreement for that purpose (d).

If land be given to the King and a subject, to have and
to hold to them and thpbr heirs, yet they are tenants in eompon

(a) Lord Raym. 36. (c) 4 Co. 73. Moor, 104. Cro.Sfe.

(b) 2H,7,8. Bro. Prerog, pj. 101. 46*. Dpr, 87. Atrf, $. ?04. Co.

Co. Lit. SO I, U. But thil prerogative h Lit. 201 , b.

not to be extended to the duchy lands, (rf) Moor, 210. Dyer, S7. S»2 Maul.

Mow, 149, 154, 161. and S. 528.

and

Ch.XI.SecL] Revenue. 211

and not joist tenants, as they take in different capacities ; and
the King cannot be a joint tenant with a subject (a).

2. The King's ordinary revenue arose also from antra*
fight* of teignuxy* ag military tenures; frotik purveyance and
pre-emption, and wine licences* Tfataeave now abolished, bot<
still squire some alight notic*.

The feudal system was adopted in England at the time of
the Conquest and in Consequence of its introduction it became
a fundamental maxim and necessary principle (though in re-
ality a mere fiction) of oar English tenures. *■ That the King*
is the universal lord and original proprietor of all the lands in
his kingdom (b) ; and that no matt doth or ean possess any part
of it, but what has mediately or immediately been derived an
a gift from him, to be held upon feudal services." The in-
tention of this. fiction was to enaUe the King* by his royal
prerogative, to put theksagdem in s state, of defence whenever
it might be necessary ; and every holder of land, was thu*
obliged to maintain dm King** title and to defend his terri-.
tories, with equal vigour and fealty, as if he had* received bra
estate upon that express condition (cjJ9 But this system,
originally intended for the public protection and security, waa
afterwards made a pretext to introduce a plan of tyranny
and oppression, hardly to be equalled in histoiy*

For in the first place, the proprietor of every estate in the
kingdom, in proportion to its extent, was burthened with
military services; for which, in process of time, a certain sum
of money was taken, by way of fine and commutation, called
escuage* 2. He was alaosubjecttocertainannual payments orrss*
in money, laid on as a mark of the lord's pre-eminence^ and hi
erder to keep the vassal in perpetual remembrance of hi* feudal
subordination* ft. He was obliged, under the name of aids, to
give pecuniary assistance when necessary, to ransom tb* King's
person if taken prisoner, to furnish a portion to his daughter,
and to contribute to the expense incurred on making his eldest
son a knight 4u It was supposed upon the death of the- feudal
possessor, that the estate ought to revert into the hands of the

(a) Co. lit. 190, a. 1 Saund. 319, law, that on the death of the tenant last

n. 4. Bac. Ab. Joint Tenants, B. 2 seised without heirs, the Ring is enti-

Bla. Com. 184. tied.

(4) Montesq. Sp. JLb. SI. c. 1. See (0 1 Bla.Com. 51.

12 East, 96, as to the presumption of

p 2 superior

212 Revenue. [Ch.XI. Sec. L

superior lord, and under that pretence it was contended, that
the new vassal ought to make him a present of a. suit of ar-;
moiir (which in antient times was reckoned peculiarly valua-
ble), or to. pay a fine under the name of relief ; to which,, in
process of time, an addition was made, called primer , seisin,
entitling the King to demand from the heir of any of his
tenants in capite, who died seised of a Knight's fee, one year's
profit upon his being put in possession of the estate* 5. If the
heir was under age at the death of his predecessor, the King
was entrusted with the wardship, or the custody both of his
person and estate ; and enjoyed the income which it yielded
till he arrived at the age of twenty-one years, And consequently
was able to perform the services stipulated for his feud. If
the heir was a female, she came of age at sixteen years, being
then supposed capable of marrying a husband who might act
in her stead. 6. If the possessors of feudal estates had the
power of entering into matrimonial connections during their
minority, according to their own fancy and humour, they
might introduce into the joint possession of the Jlef, an enemy
of the lord ; perhaps one descended from a family with whom
he hpd an hereditary variance (a). Upon this ground, the
feudal superior was invested with some degree of control over
the ward's marriage, and at length the right of selling the
ward in marriage, or of receiving the price or value of the
match, was confirmed by an express act of the legislature*
7. It was asserted by the feudal lawyers, that when the King
gave an estate to be holden of himself and . his successors, it
was a gift to a chosen and selected individual,. which no other
person ought to be put in possession of, without bis privity
and consent ; and that any attempt to infringe upon this essen-
tial stipulation, by alienating the lands to a stranger, ought to
be attended with the forfeiture of the grant (()• This right
was exercised' with great severity during several reigns in the
earlier part of the English history, until at last it was. pro*
vided by statute Edward 3. c 12. that one third of the yearly
value of the lands should be paid by way of jfiie, for a licence
of alienation ; but if the tenants presumed to aliene without a
licence, that they should be liable to a full year's rent of the

(«) Dairy mple on Feud. Prop, ck 2. . (A). Bacon's Works, fol. edit vol, 3.
sect. t. page 98, 4th edit. p. 551.

estate*

Ch.-XL Sec. r/J Revenue. --Forfeitures. 2tS

•state. 8. Escheat was the last fruit or incident resulting from
the feudal system. It was a species of confiscation (a) by which*
the feud reverted to the sovereign, either from the delinquency
of the vassal (who held it under the implied condition that he
should not prove guilty of any act* of felony or treason), ot iii
consequence of his dying without an heir, either fit to perform
the stipulated services, or entitled, by the original4 grant, to
succeed to the feud (ft).

It was imagined that the King would often find* it necessary,
with a view of examining into the real state and circumstances
of the country, to make a personal progress throughout his do-
minions ; and as the removal of the Court would occasion an
unusual demand at the places to which if went, for every species
cf provisions, it was theught requisite to give the Crown A right
of purchasing necessaries for the maintenance of the royal
household, at an appraised valuation, in preference te all other
persons, and even to force the sale or the hfre of any thing pe-
culiarly wanted, without the owner's consent (c). This prero-
gative, which obtained the names of purveyance and pi'e+ertiption,
was afterwards extended to every spot where the- royal family
resided. But the powers vested in the purveyors, or officers
appointed for that purpose, being greatly abused, and indeed
becoming every day less requisite, in consequence of the great
increase of cultivation and improvement, and of die abundance
which necessarily followed, the whole right was Abblished, at
the same time with the harsh and obnoxious system of military
tenures ; and by 12 Car. 2. c. 24. the hereditary excise, and a
duty on wine licences, were settled on the Crown in its
ttead (d). The duty on wine licences was abolished by statute
SO Geo. 2. c. 19. and an annual sum of upwards of 7000/. per
annum, issuing out of the new stamp duties imposed on wine
licences, was settled on the Crown in its stead.

3. Of forfeitures for offence^ which afford another ordinary
resource for the exigencies of the state.

" The true reason and only substantial ground of any for-
feiture for crimes consist, " says Sir Wm. Blackstone {e)9 " in

(o) See Wright on Tenures, p. 117, (c) 5 Hume's Hist. 365, 490, 547.

art* 10. < W 4 Inst. 273. 1 Sinclair, 36. 1

(6) See 1 BUu Com. 63, fcc. 1 *3io- Bla. Com. 287, S.

clair, 29, *c W IWL *W.

this*

214 Revenue.--Forfeiturei. [Ch.XI.SecI.

this, that all property is derived from society, being one of those
civil rights which are conferred upon individuals, in exchange
for that degree of natural liberty which every man must sacri-
fice when he enters into social communities. I£ therefore,
a member of any national community violate the fundamental
contract of this association, by transgressing the municipal law,
he forfeits his right to such privileges as he claims by that
contract, and the state may very justly resume that portion of
property, or any part of it, which the laws have before assigned
him. Hence, in every offence of an atrocious kind, die laws
of England have exacted a total confiscation of the moveables
or personal estate, apd in many cases a .perpetual, in others on-
ly a temporary, loss of the offenders immoveables or landed
property, and have vested them both in the King, who is the
person supposed to be offended, being the one visible magis-
trate la whom the majesty of the public resides (a)."

In some instances, the punishment by forfeiture of inherit*
apces, is, politically necessary to the preservation of the state.
It is in the case of high treason, a safeguard with which every
well regulated sta$e» whether built on maxims of monarchy or
freedom, has ever been provided ; and without which it were
liable to perpetual disorder from the desperate sallies of resent-
ment, or the daring prqjects of ambition. Here too, our own
constitution preserves ka usual excellence ; and, being framed
with much wisdom and equity as to the crime of treason, it
seems difficult to account for the conduct of those, who, in the
Parliament of the 7th of Queen Anne, were for abolishing that
punishment pf the crime, which has subsisted for ages past, is
interwoven with the first principles! and intimately connected
with the foundations o& our policy (£). To visit the conse-
quences of a crime on the innocent posterity of the offender,
by depriving them of his property, may seem unjust; but inves-
tigation will establish the wisdom of making the natural and
teeaal sdfcotions a oontroul upon irregular and selfish passions.
And it is observable, that the rigbtof inherkancebeing,it seems,
rather a matter of civil regulation and policy, 4han exclusively
conferred by the law of nature (c), it is not injustice to intetv

(a) Forfeitures in counties palatine, Forfeiture, said to be written by the
1 Bla. Com. 1 1 8. Honourable Mr, York, page 5.

(*) See Considerations on the Law of (c) See Ibid. 2 Bla. Gdsb, 1 1.

weave

Ch. XL Sec. I.] Revenue.— Forfeitures. 21s

wcare with those regulations such as manifestly tend to con-
firm the bonds of society, however unhappy and lamentable
the. effect may be on the cruriinaTs posterity. Nor h any.
thing a punishment which does not affect a right strictly so
called (a).

However, life and liberty are the gifts of nature, and should
never be taken away because of the parentis offence; nor
should a subject be made incapable df employments without
some crime committed by himself. Such severities are unwise,
as well as unequitable* A difference, therefore, must be ob-
served between the natural rights and common liberties which,
are annexed to die person of every subject, and die peculiar
distinctions of society, such as riches and honours^ These last
are merely contingent, and, if hdped for in die course of suc-
cession, depend on the conduct of those ancestors* from whom
we would derive them* And it is not to be «£, men are punish-
ed when those contingent advantages, which themselves neither
acquired nor merited, having, by reason of die " civil qualifi~.
cation of their blood," (as a great lawyer of dur own has ex-%
pressed it,) been brought into view by the desert #f one ances-
tor, are intercepted by the crimes of another-

There is a very important distinction between Ibe preroga-
tive right to forfeitures and the right of die Crown, as lord of
the fee by escheat, which will be more particularly mentioned
in the next section. The law of forfeiture was the doctrine of
the old Saxon law (6), and formed a part of the antient Scan-
dinavian constitution (c), as a punishment for the ofibnoe, and
does not at all relate to the feudal system, nor is the conse-
quence of any seigniory or lordship paramount (rf). Bui, be-
ing a prerogative vested in the Crown, was neither superseded
nor diminished by the introduction of the Nomfaft tenures, a
fruit and consequence of which escheats must undoubtedly be

(<f) " Every tfciag," fey* Patitnoorf, world without the expectation of a pa-

" wfcfeh emotes a ■arrow «■ tan, is riot trimoay ? How oaoy who Jose all they

property fmbishm**!, Jt t» a tawfcr- hate by wax, are, or shipwreck ? JLVJIL

«oa* to be reduced to poverty by a e.s« g.30.

crime, which caused, the thaffcfrate to (b) L.L. Alfred 4.LL Canute, c. 54*

set a large fine open the father of a {c) Stierah. de jure Goth. 1. 9. e. &

family i bat not a punishmewt. How and I* 3. «. S.

many are there who come into the «) % Jnst, 64. , Sal*. 35.

reckoned.

216

Revenue.--Forfeitores* [Cb.XLSec.L

reckoned. Escheat, therefore, operates in subordination to
this more antient and superior law of forfeiture (a).

Forfeitures for offences may be considered 1st, with respect
to the realty; 2dly, with regard to the personalty of the of-
fender.

With respect to the real property he may possess, a person
attainted of high treason forfeits for ever (6), to the Crown,
though the lands are holden of another original proprietor
or lord (c):

1st. His lands and tenements of inheritance, whether fee
simple or fee tail (<£), anil the King shall be entitled and ad-
judged in possession of them without- any inquisition or office
found (e).

2dly. All hereditaments whether they lie in tenure or not,
as fairs, markets, warrens, rents, advowsons, commons or cor-
rodies certain (/), or whether they are of the tenure of gavel-
kind (g) : but copyhold escheats revert to the lord of the ma-
nor, not to the King (A), and such inheritances as be purely in
privity appropriate to the person, as a foundership or corrody
uncertain, are neither forfeitable at common law, or by any
statute (f).

Sdly. Rights of entry into lands, whether the possessor be
in merely by usurpation or abatement, or by tide ; but in such
case there must be an inquisition and seizure on an office not
to entitle the King to the right of entry, but to bring him into
actual possession of the land (k). But if the traitor only pos-
sessed when he committed the treason a right of action touch-

(a) 8 Bla. Com. 251, 2. and 4 Ibid.
383.

(•) 7 Ann. ch. at. 11 Geo. 2. e. 39.
37 Geo. 8. c 39.

(c) 1 Hal. P. C. 360. See poet, tit
Escheats* As to forfeitures in counties
palatine, seel Bla. Com. 118.

(d) 26 Hen. 8. c. 13. a. 5. 33 Hen.
8. c. 20. See the cante of making this
Act of 33 Hen. 8. 3 Co. 10. b. 5 and
6 Edw.6. c 11. s. 9. These statutes
are not repealed by the statute 1 Mary,
•ess. 1. c.l. See Staundf. P.C 307. 3
Inst. 19. 1 Hal. P. C. 840, 1. Btc

Ab. Forfeiture, A. C. 1 Chitty, Crim.
Law, 727.

(e) Ibid.

(/) 3 Inst 19, 21. 1 Hal. P. C.

253.' Bac Ab. Forfeiture, A. As to

forfeiture of offices, see ante, ch. 7. s. 1.

. (g) Somoer, 53. Wright's Ten. 118.

1 Hal. P. C. 360. 2 Bla. Com. 252.

(A) I Cruise, 361. 2 Bac Forfei-
ture, A. 1 Hat P. C. 360. 1 Chitty,
Crim. Law, 728, 9.

(i) 1 Hal. P. C. 253.

(«) Ibid. 241.

iag

Ch.XLSeG.17j Revenue.— Forfeitures.

217

ing any lands, or a right to reserve a judgment given against •
him by writ of error, or a right to bring a formedon or writ
of entry, but had no right of entry without a recovery by ac-
tion, the King is not entitled to the exercise of such respect-1
ive rights* This was determined in Dowb/s case (a\ though
Sir M. Hale cites two cases which, he says, tread hard upon
the heels of the judgment in that case (A).

4thly. The benefit of all conditions of re-entry and powers
of revocation, by virtue of which the offender could have re-
duced any land into possession (c). But it seems, that. the .
King is not entitled to the benefit of conditions, the perform-
ance whereof is strictly and substantially restrained to the per-
son attainted (d), and cannot execute a power, the execution
of which is to be attended with circumstances inseparably an- ~
nexed to the person of him to whom the power is given (e).

5thly. All lands holden by another in trust for the* of-
fender^).

6thly. It seems any property which the traitor may hold as ,
trustee for another ; and in this case it appears the party for
whose use the lands were holden loses them entirely (g), for
the legal estate is forfeited by the attainder to the King, and
his Majesty cannot be compelled to, though as will be jolly
mentioned hereafter (h)9 he may execute the trusts (f). It i$
held that in case of the attainder of a mortgagor the mort-
gagee shall hold fill the Crown think fit to redeem, fox the
Court will not decree a foreclosure against his Majesty (A).

7thly. If a husband be seised of lands of inheritance in
right of his wife, and be attainted of treason, the King hath

(a) 3 Co. 3, a. 10, b.
(6) 1 Hal. P. C 242.
(e) 33 Hen. 8. c. 20. 1 Hal. P. C.
2*3,4. 3 Co. 10, b. Gilb. Uses, 146.

(d) 1 Hal. P. C. 244, 5, 6. 7 Co.
13, a. 4 Leond. 135. 2 Keb. 364,
608, 763, 772.- 1 Mod. 16, 38. See
Latcb. 25, 69, 102. Sir Wm. Jon. 134.
Bac. Ab. Forfeiture, A. -

(e) Ibid* • •

(/) 21 Rich. 2. c. 3. 33 Hen. 8.
c. 20. 1 Hal. P. C. 247, 8. Cro. Jac.
512. Hob. 214.

(#) Lane, 54. Jenkins, 190, caae-92.

Hard. 466. Bro. Feoffment ah <U«m.
pi. 31. Vin. Ab. tit. Uses, pi. 4, note.
1 Fonbl. Tr. Eq. 3rd ed. 168, 9. note,
book 2. c. 7. 1. 1. 1 Hal. 249. 1 Cruise,
500. 1 Chitty, Crim. Law, 728. Pott,
tit. Escheats ; but see Com. Die. For-
feiture, B. 1 Carter, 67. Prec.Ch.
202.

(A) Post. Fil Escheat*.

(i) 1 Cruise Dig. 550. See 39 and
40 Geo. 3. c.88. s. 12.

(*) Bridg. Index, « Treason/ * Prero-
gative.' 2 Atk. 223. Hardr. 465. 2
Ves. 286. 1 Chitty, Crim. L. 728. •

the

218 #«***.— Forfeiture* [GkX&.frct.I*

the freehold during the coverture, and if the attainted hus-
band be possessed of a term in right of his wife, the King,
shall have it So if tenant for life be attainted of treason the
King hath the freehold during the life of the party attainted,
pr his interest if he have a term for years only (*). It may be
added, that the wife of a traitor forfeits her dower by the at*
tainder of her husband for high or petit treason (6)* but not
her jointured lands (c) ; and he shall be tenant by the curtesy,,
though she be attainted (d) ; if there were issue before the
treason committed (*)•

8thly. With respect to corporations, it may be observed^
thatin the case of a corporation aggregate, as dean and chapter*,
mayor and commonalty, where the possessions are in common
in the aggregate corporation* nothing is forfeited by the at*
tainder of the head of the corporation, as the dean, mayor,
&o. (/). By the common law a sole corporation, as an abbot,
bishop, dean, prebendary, parson, or vicar, by attainder of
treason forfeited to the King the profits of his abbey, bishop-
rick or prebend during his incumbency; but their successors
were not bound by that forfeiture* for though the profits as
they arose belonged to their persons, yet the inheritance was
in right of their church {g). Hie statute 26 Hen. ft, c IS.
«• 3. altered the common law in this respect, for by that stat-
ute the rights of others are saved and preserved to theyi, ex-
cepting only the traitor, his heirs " and successors" (A). Sir
M. . Hale however asserts, that the statute 3 and 6 Edw. 6,
c 11. s» & restores and preserves the common kn? qght of the
successors of the sole corporation, because it saves the right*
of all others on a forfeiture for high treason, except the of-
fender, " and his heirs'9 (omitting the word " successors") (i)*

It is laid down by Sir M. Hale (k)9 that where lands come

<«) 1 Halo, P« C. S51, 25*. (<f) Ibid. 3St.

(*) 5 an* 6 Ed*. 6. c II. 1 Hsl. <<0 1 Hal. P. C 359* Co. Lit s. 35k

P.C359. There m some exceptions (/) 1 Hal P.C. 252.

by special legislative provision, as upon (g) Ibid.

the statute of 5 El. c 11. for clipping (h) See Ibid. Hale. Dyer, 289. 2T
money ; 18 El. c 1. for impairing mo- Hen. 8. c. 28. 31 Hen. 8. c. 13.
ney ; 5 El. c. 1. for refusing the oath (0 See 1 Hale, P. C. 252, 3. 6 Bac.
of supremacy the second time, and Ab. Statutes, O. &c. as to a statute ope-
some others. rating as t repeal of a former statute*

(c) 4- Bla. Con. 381. {*} 1 P. C. 253.

to

Cb. XL StcL] Retimt^Fafitoires. ii9

to the Crown by attainder of treason, he does not take by way
of escheat, and all mesne tenures of oominon persons are ex-
tinct, and the King takes jut* corona or prerogative rvgalis*
But the King is not entitled in general to a larger interest or
more extensive degree of property tn the lands or tenements
forfeited, than the person attainted hiifoself enjoyed; so that
his Majesty cannot lawfully eject from die forfeited premises a
person legally in possession as tenant; or do any other act
which the taw would not have permitted the traitor to commit
with impunity, the statute expressly saving to others, (except
the offender and Ins heirs and assigns, and etery of them, and
all and every other person and persons claiming by them or
any of them, or to their uses, or to the used of any of them,
after the said treasons committed) all such right, title, use*
possession, entry, reversions, remainders, interests, conditions,
fees, offices, rents, annuities, commofts, leases, and all other
commodities, profits and hereditaments whatsoever they or any
of them should, might, or ought to have had, if this act had
neve* been had or made (a). The Crdwn or its grantee on
forfeiture wBl take the estate, subject to all charges binding on
the party though Voluntary, if no fraud, but not Subject to
debts at large ; and they have the same equity to be relieved
against a conveyance as the party had for fraud on him (6).
We shall hereafter see when en inquisition is necessary to en-
title the King.

By an attainder of petit trtason or febny the offender for-
feits (c) to the Crown all Ids chattel interests absolutely, and
the profit* of all estates of freehold, whether held by him in
his own or hi* wife's right (d\ during his life, and, after his
death ; all his lands and tenements in fee simple (but not those
in tail) to the Crown, for a very short period of time; for the
King shall have them only for a year and day, and may com-
mit therein during that period what waste be pleases ; which is
called the King's « year day and waste" (e). The person en-
titled to the lands on the detfth of the offender, whether the

*

9

(a) 3 Baa. Ab. 269. See 26 Hea. 8. Bac. Ab„ Forfeiture, 4. 3 Inst. 19.
c. 13.8. 5. 33 Han. 8. c. 20. t.2. 1 (<0 3 Inst. 19. Fit*. Assize, 166.

and 2 Ph. and M. c. 10. s. 7. Forfeiture, 23, 4. Ass. PI. 4.

(*) 3Ves.U6; 228. 3 Price's R. (0 2 Inst 37. 4 BJa. Com. 385.

122. Staundf. Prerqg • Regis, c* 16.

(#) See 4 Bla. Com. 385. 2 Inst. 37.

wife

220 Revetiue.~ForJeitures. [Cb.XL SecR

wife of the offender, issue in tail, or a reversioner, cannot enter
on them, until it appear by due process, that the King lias
enjoyed this prerogative (a) : but an office is it seems necessary
to entitle the King to it (£) : and if he do not seize within a
year and day after office found, he ought it is said to have a
scire facias before seizure (c).

It is most probable that antiently the sovereign was only
entitled to commit waste on the freehold property of the
attainted felon, and that it being discovered that this destruc-
tion tended to the detriment of agriculture (d) and otherwise
to the prejudice of the public, possession of the lands was given
to his Majesty for a year and day in lieu of his right to destroy
them. This appears to have first prevailed in the reign of
Henry 1 (e). Magna Charta 9 Hen. 3. c 22. does not men-
tion waste, and merely provides that the King shall not hold
the lands of those who may be convicted of felony, but for one
year and one day ; and Sir Edw. Coke {/) was of opinion that
the commission of waste where the King also held the lands,
was an encroachment, though a very antient one, of the royal
prerogative* However the statute de prerogativa Regis> 17
Edw. 2. st. 2. c. 16. appears to recognize the right of the
King to hold the lands, and also to commit any destruction
therein. That statute provides that if a felon attainted have a
.freehold, it shall be forthwith taken into the King's hands,
and the King shall have all the issues thereof for one year
.and one day ; and the land shall be wasted and destroyed in
the houses and gardens, woods, and in all manner of things
belonging to the same land. At the present day therefore
this year day and waste regularly belong to the Crown, but are
usually compounded for (g) ; and this is the more expedient as
this prerogative cannot be granted to a subject by the King (A).
We have seen that after the expiration of the year day and
waste on an attainder of felony, the lands of the party escheated,
in consequence of the corruption of his blood, to the lord of
the fee; but the 54 Geo. 3. c. 45. has abolished both the

(a) Staundf, P. C. 191. 2 Hawk. P. 4 Bla. Com. 385, 6.

C. c 49. t. 3. 1 Hal. P. C. 360. (/) 2 Inst. 37. And see Mirr. C. 5.

{by SUundf. Prerog. Regit, 55) b. s. 2. 4 Bla. Com. 385, 6.

53, b. (g) Ibid. 386.

(e) Ibid. 54, b. (h) Bro. Ab. Prerog. pK 104. Jenk.

(rf) Sec Co. Lit. 85, ,b. 307. pi. 83.

(*) Mirr. c. 4. i. 1 6. Fiet. 1. 1 . c. 26.

corruption

Ch. XI. Sec. I.] R0venue*-~Forfeitures. 221.

corruption of blood and the forfeiture of lauds after death, in
every case except treason, petit treason, and murder, which still
remain as at common law. So that at the present day on
attainder of ordinary felony, except for murder, the criminal,
forfeits only his goods and chattels, and choses in action, and.
the profits of land during life, while his real estate comes in
the ordinary channel of descent to his heir, who is thus also
restored Xo a full capacity to inherit (a).

The forfeitures with which the crime of high treason, petit
treason and felony are punishable, are not in legal contempla-
tion incurred until the attaint takes place : that is, till judg-
ment of death be passed upon him, and therefore if the offen-
der die before judgment be pronounced, or is killed in open
rebellion, or is hanged by martial law, it works no forfeiture of
bis lands, for he never was attainted (4). A judgment of out-
lawry for treason or other capital crime, is however equivalent
to an attainder {c\ and if the Chief Justice of England in
person, upon view of the body of one killed in open rebellion,
record it, and return the record into his own Court, both lands
and goods shall be forfeited (d).

Where on outlawry the offender's lands are seized, the King
has no estate in the lands, but only a pernancy of the profits.
He cannot manure or sow the ground, and his Majesty's in-
terest continues no longer than the offender had an estate in
the lands, and determines with the death of the latter, or by
the reversing or superseding of the outlawry (t )•
. Although the forfeitures of lands above-mentioned do not
take place until the attaint of the offender is effected (f)9 yet
when that has been, done, the forfeiture relates back to: the
time when the treason or felony was committed (g), so as to
avoid all sales, incumbrances, or other acts relative to the
property, which may have transpired since that period (A).
But no attainder whatsoever has any relation as to the mesne
profits of the lands of the person attainted, but from the time
of the attainder (1).

(a) 1 Chitty, Crim. L. 735. (/) See ante, 216.

(b) Co. Lit. 13, 391, a. 3 Inst 455. . (g) 3 Inftt. 21 1. 4 Bla. Com. 366* T.
% Bit. Com. 331. Bac. Ab. Forfeiture, D. '

(0 Ibid. See Bac. Ab. Outlawry, (A) Ibid.

V. 1, 2, 3. (•) 8 Co. 170. Plovd. 488. 1 Cliilty,

<rf) 4 Co. Rep. 57. Crim. L. 735.

(e) Bac. Ab. Outlawry, D. 2.

If

222 JRevemxe.^FoTfeitures. [Ch.XI. Sec.I.

If the proof as to the time when the offence was committed,
vary from the time mentioned in the indictment, and the jury
find the offender guilty generally, the forfeiture relates to the
time laid, until the rerdiet be falsified by the party interested,
as it may be in this respect, though not as to the point of the
offence (a)* But if the jury specially find the offender guilty
on die day on which the fact is proved to have been fcm-
mitted, whether before er after the day laid in the indictment ;
in such ease the forfeiture relates to the day so found {*).

If an alien purchase land in this country for his own use,
the King is entitled to them by way of forfeiture, but the
vendor is not affected thereby (<?). This will be considered m
the next section on escheats.

Forfeit** of Personalty.— Th* forfeiture of goods and chat-
tels to die Crown accrues in every one of the higher lpnde
of offences, in high treason or misprision thereof, petit treason,
felonies of all sorts, whether clergyable or not, self-murder,
petit larceny, standing mute, and, among other offences, that
of striking in Westminster-hall, op drawing a weapon upon A
Judge sitting in one of die King's courts of justice there (rf).
And where a man, being accused of the commission oftreason,
WonjS op even petit larceny, flics from the inquiries of justice^
and the jtwy find the flight (which they seldom or never do),
he forfeits all his goods and chattels to the King, although he
be acquitted on the trial of the offence imputed to him (r). !£,
however, in this case the indictment be insufficient (f\ or the
flight be disproved on a traverse of the finding of the jury {g%
the forfeiture i&saved* It seems to have been formerly consi-
dered, that a coroner's inquest finding the flight, ootikl not be
traversed, so as to save the forfeiture (A) ; but the injustice and
hardship of subjecting a man to so severe a punishment as the
confiscation of all his personalty, by a finding which took place
in his absence, and most probably without giving him an op7

(a) 1 Hal. P. C. 361 . 3 Inst. 930. feiture, B.

(b) Rely. 16. Hal. P. C. 361. 3 (/) Bac Ab. Ibid.

hut. 318. 3 Ibid. 330. (g) Bac. Ab. Ibid. Ketlw. 68. 5

(<?) Co. Lit. 2. 1 Bla. Com. 372, Co. 1 10. Staimdf. 184.
(rf) 4 Ibid. 386. Bar. Ab. Forfeiture, (h) 13 Hen. 4. 13. pi. 6. 5 Co. 109.

Jl» 5 Co. 109. Dyer, 238. 3 Inst. 147. 3 Keb. 366,

(*) 4 Bla. Com. 387. Bad. Ab. For- 364. 2 Lav. 141.

^ 3 portunity

Ch. XL Sec. I.] Ro^ue ^Forfeiture $. 528

portanity of shewing his innocence, together with the circum-
stance of less weight having been of late years attached to the
verdict of a coroner's jnry than aatiently, it was codsidetfed as
entitled to («)> appear to justify the assertion, that at the present
day a party might legally traverse the finding of the coroner's
inquest,' in order to obviate the consequences of the flight of
which he is accused (6). But this matter is not of ranch j*ao-
tical importance, as the flight is never found.

On an outlawry, whether in a criminal or civil case, the party
forfeits his personal property to the Crown (a). In this case,
however, the forfeiture may be obviated by a reversal ef the
award of the exigent, either for error in fact or law(<Z> Bat it
seems, that if a person accused even of petit larceny only,
makes default till the award of the exigent, his goods are foi>
fetted, and though he is entitled to than on a reversal of the
outlawry, yet he cannot claim a return of them, merely because
he is acquitted at the trial of the oflfenee for which he is in*
dieted (*)•

Every thteg which comes within- die description ef personal
property is forfeited, without office found, in the above in-
stances ; and evenehosea in action ©rdebts, whether due on spe-
cialty or simple contract* -and whether acquired before or after
the attainder (f). Andy k seems, that trusts of personalty stand
m this respect en the same footing as trusts of realty (£). It
is, however, dear, that such property as the offender holds as
executor or admknstratoiy fe not forfeitable to the Drawn (A).
Where the party is joint abHgee ef a bond with another, ft
seems, the King shall have the whole (i), because the demand
is mdivisiUe. And, on the same ground^ if another were alto
interested in a horse or ok with the defendant* the King shall
atiU have the whole (A). •

We have already seen, that lands are only forfeited upon at-

(a) See 2 Hawk. P. C. c. 9. s.53, 55. 966. Hawk. P. C. b.g. c. 49. «. 9. Bul-

Bac Ab. Coroners, B. lock e. Dodds, 2 B. and Aid. 259.

(5) And tee 1 Bac Ab. 755. 2 Hawk. (g) See Ibid. Ceo. Jac. 312. Hob.

P. C. c. 9. s. 54; but tee 1 Cbjtty, 214.

Crim. L. 731. (A) Cro. Car. 566. 2 Leon. 5 and 6.

(c) Bac. Ab. Outlawry, D. 2. Moor, 100. Dyer, 309, 10. Cro. El.

<<0 Ibid. 575, 851. 2 Rol. Ab. 806.

(e) Ibid. 5Co.H0. Cro. Jac. 464. (i) 1 Wightw. 51, 9.

1 Chitty, Crim. L. 731, 2. (*) Plowd. 243, 323. Pott a. 3.

(/) Bac. Ab. Forfeiture, B. 3 vol.

tainder ;

234 Revenue^-For/eiiures. [Ui.XI.Sec.L

taiaddr ; pef sbnalty is, however, forfeited ,up»?n. the, qffen^r'*;
being <convictecl, or, in other words, found guilty by ti}$ juiy (^}},
artd although in outlawries for treason, or felony, lairds aje.fo^
feited -only by the judgment, yef; the personal property ojf th^. ,
offender is forfeited, by his being first put in tieexigeruj w^hjgu; ,
staying'till he is quinto cxactus, or finally outlaw^! ; fpj^ j^s^-.,.
crating- himself so long from justice is* construe^ a, ftigbtjtq ,j

•There is a further material distinction.b^tw^eq the forfeit :
ure of *etd arid personal property; for the 'forfeiture," of ., the
former has rtelatioft to the time when thepffence wajs coipynitt^lj .
so as to avoid all subsequent sales and incumbrances) .bu(,tb£
forfeiture of personalty has no relation backwards, so that /
those only which the offender had at the time of the convif^tQ1!
shall be forfeited; and, therefore, a traitor or felon may ^Jl „
any of Ids personal property for the sustenance, of himself and »
family, between the fact and conviction (c). A,nd in, the greajt ,
prisage case, ih Bulstrode's Reports (<?), this point is put, .". A .
tenner is7 distifcifted for rent behind : afterwards he is attainted
for felony, done before the distress taken; Per Curiam " The
.King shall not Jhave this distress as a forfeiture, unless he do ,
satisfy the party who distrained, for. this was lawfully talf^f
tempotr eapH&nisJ* If, however, the property be parted witji
colhfesively, and in order to defraud the King, his Majesty /wjlj. 4
be entitled -to it (*).

As hid down in a recent work {f\ " By the 1 Rich. 3,c8,
the sheriff and other officers are precluded from sfizing^ tip*
goods of a* party arrested or imprisoned for treason, or felony .
until his attainder or conviction. This Act is said to be only
in affirmance of the common law (g), and extends to money as ,
well as specific chattels (A). It seems, however, that the goods
may be appraised* or inventoried, after indictment founds in .
order that no sequestration or collusive transfer may defeat -

< «.

(a) Co. Lit. 391, •. l-Ata/M. 4 (/) CMtty, Crim. L. 736. *

Blft. £#111*397. . . (g) HifA, 9*' * tost. 959« Conl-

i
i

(A) 3 Inst. 332. Dig. Forfeiture, B.4. Ibid. Justices, 2.

(c) S Co* , \H. ? 4 BlBft.Com* SI7« Hawk. S. 9.<v4£ s. 59. .

3 Price, R*jei« ... (A) Sir Thomas Bsy. 414; Hs*k.

(d) 3 Bufetc, 17. i). 3. c. 49. s. 39. Com. Dig. Forfeiture,

(e) Skin. 337. pi. 4. 1 3 Kl. c. 5. 4 B. 4. Ibid. Justices, Z.
Bla. Com. 386. .

the

Ch. XL Sec. I.] Revenue.— Forfeitures. 225.

the Crown of the forfeiture (a). This, indeed, does not extern!
to a removal ; and it is clear, as just observed, that the party
indicted may sell any of them for his support in prison, or
that of his family, or to assist him in preparing for his defence
on the trial (ft). But a fraudulent conveyance, without consi-
deration; as a bill of sale to a felon's son, will be void ; because,
as the owner might, if acquitted, have recovered them back
himself so, if convicted, the transfer will not avail against
his Majesty (c). And though the property cannot be touched
before, it is certain that it may be seized as soon as the for*
feiture is completed (d). It seems, too,' the whole township is
-answerable to the King for their production, and are, therefore,
empowered to seize them wherever they may be conveyed (e).
And, at common law, they could exonerate themselves from
responsibility, by shewing that they delivered the goods to an
individual by whom they were secreted (f); But by the 31
Edw. S. c. 3. they are admitted to excuse themselves, by
throwing the blame on the party actually culpable. The
Crown sesems to take them free from liability to the previous
debts of the convict, though it should seem that, in some
cases, the Crown will allow the creditors to reap benefit from
them {g).n

The King's pardon will effectually remit and prevent such
forfeitures as accrue to the Crown, but not vested escheats to
a subject who may be lord of the fee* The power of the Crown
to regrant forfeitures, &c. will be mentioned in the next sec-
tion, on escheats (h).

To consider the various cases in which the right of the
. Crown to goods forfeited for breaches of the revenue law, ob-
tains, would lead one into a detail of the revenue laws ;. a sub-
ject principally founded on the positive enactments of the

(a) 1 Hale, 367. 3 Inst. 228. Hawk. (rf) Co. Lit. 391, a. Hawk, b, 2.

b.2. c. 49. s. 3.5. Bro. Abr. Forfeiture, c. 49. s. 40.

10. Burn's J. Forfeiture, J. Williams's (t) Staundf. Prerog. 47. Bro. Ab.

J. Seieare of Felon'» Goods. Charge, 45. Hawk, b. 3. c. 49. f . 40.

(6) 4 Bla. C>m. 337,8. 8 Co. 171. Bac. *b. Forfeiture, B.,

Skin. 357, 8. 1 Hale, 361. Uawlcb. (J) Hawk. Ibid, s. 41. Bac. Ab.

Q. c. 49. t. 33. Com. Dig. Justices, 2. Ibid.

Bac. Ab. Forfeiture, £. Williams's J. (g) Doogl. 542. See form of corn-
Seizure of Felon's Goods. mission, to inquire of lands forfeited

(c) Ibid. on outlawry, ace. 1 Li!. Ent. 304.

(A) Post, 235.

q legislature.

226 Revenue. — Escheats. [Ch. XL Sec. I.

legislature. It may, however,, be remarked, that when for-
feitures of this description are incurred, they accrue instantly
to the Crowa, and will not be divested by a subsequent seizure
of the same article, as a droit of admiralty, or otherwise {a) ;
.though, as -the Admiralty Court proceeds in rem, a judicial sale
of a vessel, &c as a derelict, without fraud, is available against
the Crown's right of seizure for a previous Forfeiture under the
revenue laws ; although the Crown was not a party to the pro-
ceeding in the Admiralty Court, other than by the King's l*ro-
curator-General claiming the vessel as an Admiralty droit ; and
, although no decision of droit, or no droit, was awarded, and
the sale took place, pendente lite% under an interlocutory or-
der^).

4. We may mention Escheats as constituting another, and
by no means an unimportant part, of the ordinary" and inhe-
rent revenue of the Crown.

As before observed, the doctrine of escheats is a consequence
of tenure in chivalry, according to the antient feudal system.
Escheat is (c) the determination of the tenure, or dissolution of
the mutual bond between the lord and tenant, from the ex-
tinction of the blood of the latter, by either natural or civil
means; if he died without heirs of his blood, or if his blood
was corrupted and stained by commission of treason or felony,
whereby every inheritable quality was entirely blotted out and
abolished. In such cases the land escheated, or fell back, to
the lord of the fee ; that is, the tenure was determined by
breach of the original condition expressed or implied in the
feudal donation. In the one case, there were no heirs subsist-
ing of the blood of the first feudatory or purchaser, to which
heirs alone the grant of the feud extended ; in the other, the
tenant by perpetrating an atrocious crime, shewed that he was
no longer to be trusted as a vassal, having forgotten his duty
as a subject, and therefore forfeited his feud, which he held
under the implied condition that he should not be a traitor or
a felon. The consequence of which in both cases was, that the
gift being determined, resulted back to the lord who gave

(a) Parker, 273. Observations on (A) 3 Price, 97.

this case, 3 Price, 134.. (0 2 Bla. Com. 72. Co. Lit. 13.

it

Ch.XI. Sec.T.3 Revenue.— Escheats. 227

it (a). It is in this point of view that Bracton (ft) terms an
escheat a species of reversion.

Wherever lands escheat, they become the property of the
lord of the seignory, or person of whom they were held. Now
by the statute 12 Cha. 2. s. 24. f<?r changing all the antient
tenures into free and common socage, the rents and services
(among which fealty is occasionally due) are preserved to the
lord ; of him therefore the lands are still holden, and to him
they may escheat. But if all these badges of tenure have been
neglected to be preserved, and it be no longer known of whom
the lands are mediately holden ; then the King, as die great
and chief lord, shall have them by escheat; for to him fealty
belongs, and of him they are certainly holden by presumption
of law, and without the necessity of proof (c). At the present
day therefore the King is almost universally though not neces-
sarily the lord of the seignory, and as such entitled on the
escheat of inheritances. The case of a copyhold, which es-
cheats to the lord of the manor, as the person of whom they
were held, seems to form the only general exception. It will
not therefore be a digression to enter rather fully into the law
of escheats.

An escheat may, says Lord Coke (d), happen 1st, atU per
defectum sanguinis (that is) for the default of an heir ; 2dly,
out per defectum tenentis.

1. To state fully all the particular instances in which an es-
cheat may occur, in consequence of a party dying without rela-
tions who can inherit, it would be necessary to enter into the
principles and niceties of the law of descents. It will suffice to
observe in this place, that escheats arising from a deficiency
of blood, whereby the descent is at an end, take place, 1 st, where
the tenant dies without any relations on the part of any of his

(a) Feud. I. 2. t. 86. 2 Bla. Com. right and possession must be presumed
12, and 244. Co. Lit. 13. Wright's to be immediately in the Crown without
Ten. 115. 2 \nst. 64., 1 Bla. Rep. office, as though the person last seised
133. were the King's immediate tenant; the

(b) 23, a. King's title not appearing by any matter

(c) Booth's Real Act, 135. Cro. of record, and the possession not having
Eliz. 120. 3 Cruise Dig. 496. 2 Bla. been vacant from the death of the te-
Com. 245. Sed qu. whether at common nam last seised. See 12 East, 96, 109,
law upon the death of the tenant last 110.

seitedof the land without heirs, the (tf) l InsU 13, a. 92.

Q 2 ancestors;

228 Revenue. — Escheats. [Ch. XL Sec. I.

ancestors ; Cdly, where he dies without any relations on the
part of those ancestors from whom the estate descended; and
SdJy, where he dies without any relations of the whole blood.
In all these cases the lands escheat, because there is no one
capable of inheriting them («).

An extinguishment of inheritable blood takes place, and the
doctrine of escheat to be lord of the fee also obtains, if there
be no other heir to the party who died seised but a monster*
which has not the shape of mankind, and in any part evidently •
bears the resemblance of the brute creation, for such monster
cannot inherit (£). And the same doctrine applies where
the only claimant is illegitimate (c). And as bastards cannot
be heirs themselves, so neither can they have any heirs but
those of their own bodies. For as all collateral kindred con*
sists in being derived from the same common ancestor, and as
a bastard has no legal ancestors, he can have no collateral
kindred ; and, consequently, can have no legal heirs, but such
as claim by a lineal descent from himself. And therefore if a
bastard purchase land, and die seised thereof without issue,
and intestate, the land shall escheat to the lord of the fee (d).

There is another case in which lands may escheat to the
lord propter defectum sanguinis^ and that is where a man leaves
no other relations but aliens (the persons falling within which
denomination have been already considered) ; for it is a rule
of law, founded as much on political as feudal principles, that
aliens cannot take by descent, and are incapable of inherit-
ing (e). In every country restraints have been laid upon aliens :
in England the disabilities to which they are subject are not
imposed on them as penalties and forfeitures, but are
founded on the necessary policy of the state (f).

Aliens have no inheritable blood to transmit, and conse-
quently can have no heirs (g)9 unless made denizens by the
King, or naturalized by Act of Parliament. In the first case

(a) 3 Cruue Dig. 382, and 492. 2 Bla. Com. 249.

(b) Co. Lit. 7, 8. 1 Bl.i. Com. 247. (f) It has therefore been adjudged in

(c) Ibid. 1 Inst. 7, b. 244, b. 245. Equity, that an alien cannot demur to
a. n. 1. Finch, L. 117. a discovery of any 'circumstances ne-

(d) 2 Bla. C. 249. and 3 Cruise Dig. cessary to prove the fact of alieoage.
374. See Bract. I. 2. c. 7. Co. Lit Parker, 144. 5 Bro. 1\ C. 91.

244. (g) Ibid. Co. Lit. 2. 1 Lev. 59.
(?) Co. Lit. 8. Bac Ab. Aliens, C

children

Ch. XL Sec. I/] Revenue.— Escheats. 229

children born after the denization may inherit, in the latter
they may whether born before or after (a).

It may not perhaps be irrelevant to consider in this place
the rights of the Crown on an alien purchasing lands. Aliens
are by law incapable of holding lands by purchase (b) : but
their purchases stand good (c), and as every person resident
in the 'country is prima facie a natural born subject, the free-
hold remains in them (d), till on office or inquisition the .same
are divested and seised to the King's use (e) ; for on office
found the King by his prerogative is entitled to such l$nds of
whomsoever they are holden (f). But if an alien who can have
no heir purchase land and die, the freehold is cast upon and
is in the King without office found (g) : unless after the pur-
chase he has been made a denizen and hath issue ; for in such
case the son has a plausible, though not a legal (A). claim,
which should be investigated and disproved only on office
found (*). In general if a denizen purchase a fee* and die
without issue, the lord of the fee shall have the escheat* , .and
not the King, the effect of denization being to enable the
party to purchase (k). It should be remarked, that though,
an alien may hold under a purchase, that is, till office found,
and the land then enures for the benefit of the Crown, yet he
cannot, even for the benefit of the King, take by act of law,
as by descent, &c (/). And if he purchase in the name of
J. S. in trust, &c. the legal estate being in the latter, it is held
the Crown must sue in Chancery to have the trust executed

(a) I Bb. C. 374. 2 Ibid. 250.

(•) Co Lit. 2.

(r ) 1 Bin. Com. 372.

(</) And therefore on a covenant to
stand seised an use will arise for an
•lien, Godb. 275. Feoffment to an
alien, &c. Dyer, 283, b.

(*) Co. Lit. 2, a. 5 To. 52, b. 1
Bac. Ab. 1 S3. Before office recovery
by an alien tenant in tail will bar re-
mainder, Gonldst 102. 4 Leon. 84.
Bat even before office found the King
is so far entitled to the property as to
1iave a right to the assistance of a Court
of Equity to enforce a discovery of the
fact of alienage. Park. 144*

(/) If an alien purchase a copyhold,
it is said that it shall escheat to the
lord. Dyer, 2, b. and 303, a. in marg.
But see 1 Mod. 17; and All. 14.
HargT. n. 4, and Co. Lit. 2, b.

(g) Ibid. Co. Lit. 2, b. See in Plowd.
229, several cases, in which, for a like
reason, the King is entitled without of-
fice.' See 12 East, 96, and post. c. 12.
a. % Offices.

(A) See ante, 228.

(0 Ibid. Bac. Ab. 133, tit Aliens,
C.

(*) Co. Lit 2, b.

(/) 7 Co. 25, a. 1 Ventr. 417. Co.
Lit 2, b. n. 1.

for

230 Revenue. — Escfieats. [Ch.XI. Sec. I.

for his benefit (a). The King is it seems entitled to a lease4
for years taken by an alien contrary to 32 Hen. 8. c. 16.
s. IS (b).

2. On the same principles of the feudal system is founded
I he doctrine of escheats to the lord of the fee propter delictum
trnentis. The blood of the tenant t>eing corrupted and ren-
<u»red no longer inheritable by an attainder, the original de-
nomination of the feud is altered and determined: it being
always granted to the vassal on the implied condition of dum
One se gesserit (c). It is in this point of view that escheats to
the lord, and forfeitures of lands to the Crown, which have
sometimes been confounded together, essentially differ; for
forfeitures were, as before observed, used and inflicted as
punishments by the old Saxon law without the least relation
to the feudal system, and they differ in other material re-
spects (d).

At common law the blood was corrupted by an attainder
(but not till the attainder) of high treason, or any species of
felony. In the former case it still obtains, except in the in-
stance of treasons respecting the coin (e). But by a late sta-
tute 54? G. X c. 1 4-5. the corruption of blood and a forfeiture
of lands after death is taken away in all cases, except high
and petit treason and murder, so that no attainder for any
other felony " shall extend to the disinheriting of any heir,
nor to the prejudice of the right or title of any person other
than the right or title of die offender during his natural life
only ; and that it shall be lawful to every person to whom the
right or interest of any lands or hereditaments after the death
of any such offender should or might have appertained if no
such attainder had been, to enter into the same."

We have already seen to whom escheats revert, that is, to
the lord of the fee, who is almost universally the King. In
the case of attainder of high treason, the superior law of for-

(o) I Bla. Rep. I44j and I Bac. Ibid.

Ab. t34, cites llol. Ab. 194. Hob, 214. (c) 1 Inst. 8, a. 391, b. 2 Bla. Com.

Cro. Jac. 512. Allen, 14. Style, 20, 252.

21, 76. Parker, 156. See 13 Ceo. 3. (d) 1 Bla. ftep. 143.

c. 14. which enables aliens to lend mo- (e) 5 El. c 1 1, s. 2. 18 El. c. 1. s. 2.

,ney on West India Land. 8 and 9 W, 3. c. 26, a. 8. 15 Geo. 2.

(A) Co. Lit 2, U. and n. 6. See notes, c. 28. s. 4.

feiture

Gi. XL Sec. I.] Revenue.— Escheats: 23 1%

feiture intervenes, and renders the doctrine of escheat irre-
levant; for by such attainder lands of inheritance, though
holden of another lord, are forfeited to the Crown, there being,
an exception in the oath of fealty which saves the tenant's alle-
giance to the King (a). In case of petit treason and murder
no absolute forfeiture of lands is incurred : and in these cases
the 54 G. 3. does not take away the corruption of blood ; and
therefore in such instances the law of escheats is still important
and applicable.

Though the land escheat to another lord the King is entitled,
before such lord enter, to his year day and waste which has
been already considered.

The corruption of (he offender's blood by an attainder pi
high treason, petit treason, or murder (which alone can now
occasion it), renders him ignoble, and annihilates his honours
and dignities (&). Unlike the case of mere forfeiture for offences,
it not only causes all he has to escheat from him, but renders
him incapable of inheriting any thing in futore(c) ; so thai
property subsequently acquired escheats to the Crown (d). And
if therefore a father be seised in fee, and the son commit trea*
son and is attainted, and then the father die; here the lands
escheat to the lord ; because the son, by the corruption of his
blood, is incapable to be heir, and there can be no other heir
during his life ; but nothing shall be forfeited to the King, for
the son never had any interest in the hinds to forfeit (*)• In
this case the escheat operates, and not the forfeiture ; but in
the following instance the forfeiture works, and not the es-
cheat. As where a new felony is created by Act of Parliar
meat, and it is provided (as is frequently the case}, that it shall
not extend to corruption of hlood ; Jjece the lands of the feloii
shall not escheat to the lord, but yet the profits of them shall
jbe forfeited to the King for a year and a day, and so long after
a$ >the offender lives (f\

. The corruption of blood affects 'also the posterity of the
offender. His blood being corrupted and rendered imper-

(«) 1 Hale, P.O. 360. Bac.Ab.For- (c) 2 Bla. Com. 253.

feiture, A. and Prerogative, B. 2. ante, (rf) Co. Lit. ¥, b.

cb. 2. i. 2. («) Co. Lit. 1 3.

(ft) Co. Lit. 8, 41. 3 Inst. 211. (/) 3 Inst. 47. 2 Bla. Com. 253*

Hawk* t>. 9. c« 4. s. 47.

V10US,

232 R&emu.T-Ezclmts. {Th.XJ.Sec.L

vioue,he is not only unable to transmit his eyrn propertyrtyt!
heirship* but obstructs the descent of land* to his heirs, in. .all
cases where they are obliged to derive their tide through him-
from any remoter ancestor (<z). Therefore, the son of an at-
tainted traitor cannot inherit his grandfathers land* but they
escheat to the Crown (b) ; and where there were two brothers,,
and the youngest had issue a son, and was Affrynfr'd of treason,
and executed, it was held, that the son of the youngest brother
could not inherit from his uncle, because he must derive. his
descent through his father (c). It is, however, a cigar rule,
that the corruption of blood does not affect the succession of
collateral issue; so that if a person whose blood is corrupted
has sons, one of whom acquires an estate of his own, and dies
without issue, his brother will inherit, because there is no ne-
cessity in such a case to make any mention of the father (d).
And it is a general rule, that where there is no necessity to
name the individual attainted in a title, his corruption of blood
will not vitiate, though the ancestor be ever so distant (e).
Thus, for example, if there be a father and two sons, and the
eldest is attainted in the lifetime of the father, and dies without
issue, the younger son will succeed to those estates which
otherwise would have descended to his brother ; but if the elder
son, who was attainted, survive the father but a day, so as to
have been placed in his room, the lands must escheat, and the
succession be for ever defeated (f). A person may, however,
inherit from one of his parents, though the other should be at-
tainted of treason, or felony, for duplicates sanguis is not neees*
saryin descents. Therefore, if an attainted person marry an
heiress, and have issue by her, that issue shall inherit, for
the marriage was lawful, and he claims only from the mo-
ther (g)-

All lands and tenements held in socage, whether of the King
or of a subject, are liable to the law of escheats ; as are copy-
holdlands, on attainder, which* however, revert to the lord of

(o) Hal. P. C/356. 740.

(A) Ibid. (e) Hawk. b. 2. c 49. s» 49, £a.c. Ab.

(c) Grey's Case. . Dyer, 274. Cro. Forfeiture, G.
Car. 54.1. 3 Cruise Dig. 379. (/) 1 Chitty, Crim. L, 741.

(rf) Co. Lit. 8, a. 1 Hale, 357. Hawk. (g) Jenk. Cent. 1. ca. 2.. Cent. 5.

b. 2. c. 49. 8. 49. 1 Chitty, Crim. L. ca. 27. Noy.168* 3 CruUe Dig, ?78.

8 the

di.xfc Set. 1.3] B&H^\^3mmi

233

thelniatfd*(feJ.rvBnt:^^ estate* tttj*(tfj;"

ddnoferch^V^^*^*^ ft*1* treason.1 And rib'

specie* bf real ^ra^erty; whidh fides hdt life in teitate, as a tent-'
chargey, rJgbf of tbitfftibh,* or f^'vmrretV'fc 'Sflbjeci>tb es-
ch&rt [iy.' 48r>,' tf lands be giver! «6 k tebi^oratibn, on the cfrsso-
lutk5rt tfc&tedfy IW dbnof, 6r'Hsi heii^, shall have them afcain fn
rerftdioii; AtaH^Hlfe'WW ty escheat; which is a very rjfecii-1

liar case (*). '»' .:'•.•< -' '»' •' • • ■• •

Even tirtfe King, t^ieU he is lo*d$ cannot claim by e^dieat
contrary to the ieitos and cdhditkms linder 'whfeh the tetiarit
held (/). ' His Majesty^s rrght^ by escheat, stands on tfte 'snhiii
ground as every other legal right } it arises out of the seizin (f)9
and is, in general, governed by the satnerdes as govern es-
cheats to the subject fe). Wherever,- therefore, tJterfe be a
tenant to perform the1 services (A), die Grown, though the I6rd
of the fee, cannot claim by escheat, more than any other lord;
as if cestui que trust, or a mortgagor, die without heirs, or be
attainted of petit treason or murder, which seems to make' no
difference. The trustee in the one case, and the ihort^agee^in
the ether, and not the King, shall have die inheritance (i).

t<

(a) . Co. Cop. s. 28. 2 Ves. jun. 1 70.
1 Chitty, Crim. L. 728/ 9. But the
homage ought to present the death of
the party without heirs, and proolama-
thm oijght to be made requiring claim-
ants, if any, to appear, &c. Ibid. It
has been hotden/that if a surrender of
a copyhold be made to a party who is
executed before admittance, the land
will not escheat to the lord, but return
to the surrenderor and descend to his
•accessor*, t Wilt. 19*
(a) Rob. Gar. 226. 2 Bla. Com. 252.
(<?) 3 Co. K. 10, b. Cro. £1. 28. 3
Cruise Dig. 473,4.

(a*) 3 Inst 21. As to forfeiture there-
of, ante, a, 1.
(#) 2 Bla. Com. 25$*
(/) 1 Bla. Rep. 165.
(g) To what incumbrances the lord
taking by escheat is liable in general,
3 Cruise, 496. 1 Bla. R. 134; may
distrain for reht, 1 Inst. 21 5, 6 ; and
•■titled to all charters, lie. Bro. tit.
Chart, pi. 59. 3 Cruise, 499.

(A) As to this, see 1 BJa. JUjp. 175*
3 Cruise Dig. 493, 515; what alienation
prevents an escheat, 3 Cruise Dife.' 495.

(i) 1 Bla. Rep. ifl&>. lid. MtottftddV •
Diss. And this was somewhat donbfcul by
Lord Thurlow; see 1 Bro. Cb. Cos.
204. But the law seems clearly to be
so on the ground above stated. And 1
, have MSSL opinions of Mr. Serjeant
Hill, Mr. Serjeant Heywood, and Mr.
Hughes, to the same effect; on the
ground that there can be no wani of a
tenant to perform the services, in whfth
case only an escheat takes plane where
there is a person seised of a legal estate
in foe, capable of performing such ser-
vices. On which ground alto they
thought there was no escheat in the
case of a mortgagor's death, Auv; . but
that the mortgagee was the tenant, ac-
cording to the opinions expressed by
the Lord Keeper and the Master of the
Rolls, in the case in 31a. Rep. see (bid,
149, 170, 184.. See Jenk, 190. Hardr.
495. Sid. 405.

»*

But

234 Revenue.— EscJieats. [Ch.XLSec.L>

But where a mortgagor of freehold property was attainted of
high treason) the Court would not decree a foreclosure against
the Crown, but directed that the mortgagee should hold and
enjoy the mortgaged premises, till the Crown thought fit to re-
deem the estate (a). It has been held, that where the character
of land is not imperatively and definitively fixed upon money,
by the terms of a will, or other instrument, a Court of Equity
will not order it to be laid out in land, in order to let in the
Crown, claiming by escheat (6). It seems, however, to be a
general rule, that the Crown, when it takes by escheat, is free
from equitable claims (<?), as if a trustee die without heirs, the
King is not subject to the trusts (</). And where the inherit-
ance escheats, and there is an outstanding term which is at-
tendant thereon, the lord, by escheat, will be entitled to such
term (*). But it is said, that mortgaged lands escheat on the
death of the mortgagee in fee, without heirs, subject to the
mortgage (/)•

The King's pardon does not prevent the escheat to the lord
when rested (g) ; and though a pardon will enable the party
to transmit after acquired property to his children, yet an Ac£
of Parliament reversing the attainder is necessary, to remove
the stain or corruption of blood entirely (A).

The mode by which the Crown obtains property to which
it is entitled by escheat, will be considered hereafter. But it
may be observed in this place that an office or inquisition is in
general unnecessary (i); though an entry should, it seems, be
made on the part of the Crown, for the failure mnd neglect to
claim or the doing any act which amounts to an implied waiver
of the right of the claimant by escheat, (as accepting homage,
or in some instances, rent of a stranger, who usurps the pos-
session, &c.) may at all events, in the case of a subject, effec-
tually bar the title by escheat (*).

(a) * At*. 3*3. (0 5 Bac. Ab. 566, ant* MX When

(A) 2 Vet. juo. 170* necessary in tbe case of an alien pur-

(c) 1 Ble. Rep. 149. chasing land, ibM.

(tf) S Crabe Dig. 4*7, ft. (A) See Co. Lit. fiflB. 1 Bin. Com.

(*) 1 Vem. 940. 344, 5. 5 Bac. Ab. 497, tit. Preroga-

(/) 1 Bla. Rep. 170. tire. 3 Crowe Dig. 494. Bosftrar

(g) 1 Chitty, Crim. U 742. Owwi, no laches U sntptatsMe to the Ksnp :

87. 3 Ma. Omsu $54. but a recognition of another's

(A) Ibid, ante, c. 7. «. % div. 4. by express aoU ia another cpnaidetft-
1 Hale, 358. 3 Inst. 240, 1. tion.

The

Ch.XJ. Sec.l.] Revenue. — Escheats: 235

The exercise of the right of the Crown by escheat, to the
prejudice of the relatives of a party who died without heirs,
or attainted, or in the case of purchases by aliens, &c. would
in many cases be harsh. It has therefore been the practice
for the Crown on a petition disclosing the facts, to grant the
lands to parties who might otherwise lose them ; and to direct
the execution of trusts, to which flie property may be liable,
&c. In furtherance of this liberal practice, it is enacted by
the statute 47 G. 3. sess. 2. c. 24. " that in all cases in which
his Majesty, his heirs or successors, hath or shall, in right of
his Crown or of his Duchy of Lancaster, become entitled to
ariy freehold or copyhold manors, messuages, lands, tenements,
or hereditaments, either by escheat for want of heirs, or by
reason of any forfeitures, of by reason that the same had been
purchased by or for the use of or in trust for any alien or
aliens, it shall be lawful for his Majesty, his heirs and succes-
sors, by warrant under his or their sign manual, or under the
seal of the duchy or county jtelatine of Lancaster,, according
to the nature of the title to such fnanors, messuages, lands,
tenements, or hereditaments respectively, to direct the execu-
tion of any trusts or purposes to which the Same may have been
directed to be applied, and to make grants of such manors,
messuages, lands, tenements, or hereditaments, or of any rents
or profits then due and in arrear to his Majesty in respect
thereof respectively, to any trustee or trustees, or otherwise,
for the execution of any such trusts or purposes, or to any
person or persons for the purpose of restoring the same to any
of the family of the person or persons whose estates the same
had been, or of carrying into effect any intended grant, con-
veyance, or devise of any such person Or persons in relation
thereto, or of rewarding any person or persons making disco-
very of such escheat, or of his Majesty's right and title thereto,
as to his Majesty, his heirs or successors respectively* shall
seem fit.*

In a modern case, Lord Eldon said, it is perfectly familiar,
that where there is an escheat for want of heirs, and the fact is
not communicated, it is usual to petition the King, stating that
there is such an interest, and praying Some reward upon the
ground of the discovery, if it can be made out; and the ordi-
nary rule upon an escheat is, for the Crown to give a lease,

as

236

Revenue. — Escheat*. £ Ch. XI. Sec. I.

as good a lease as it can give, to the person making the dis-
covery {a). ^ ( t , .
5. The profits arising from the King's ordinary Courts of
Justice Form another branch of his ordinary and inherent
revenud. And these consist, according to Sir Wm. Black*
stone (4% not only in fines imposed upon offenders, except in
the case of a fine on an indictment for not repairing a high-
way (er), forfeitures of recognizances, and amercements levied
upon defaulters ; but also in certain fees due to the Crown in
a variety of legal matters, as for setting the great seal to char*
ters, original writs, and other forensic proceedings, and for
permitting fines to be levied of lands in order to bar entails,
or otherwise to ensure their title. As none of these can be
done without the immediate intervention of the King, by him-
self or his officers, the law allows him certain perquisites and
profits, as a recompense for the trouble he undertakes for the
public These in process of time have been almost all granted
out to private persons, or else appropriated to certain particu-
lar uses ; so that though our law proceedings are still loaded

(a) 7Ves.jun. 71. The following is
m sketch of the form of a " Warrant
under the Sign Manual," for granting a
freehold, &c. (forfeited by alienage)
upon trust for sale, for the benefit of
the alien and his wife. It recited that
the Commissioners of the treasury had
represented, that by inquisition before
four commissioners, before a jury of
twelve men that the alien had purchas-
ed by deed, 6cc certain premises (de-
seribinf them) ; that the premises de-
volved to the Crown by prerogative ;
and the Commissioners bad accordingly
seised the same into the King's hands ;
that the alien by memorial had repre-
sented and discovered the circumstances
and the King's right, to the Commis-
sioners of the Treasury; and prayed
them to intercede for a frantfrom the
Crown, and for relief; that the Treasu-
ry had so done; it then granted the
premises to trustees, their heirs, &c.
upon trust, to carry into effect any con-
tract by the alien for the sale of them.

and to sell, &c ; that the Trustees'
receipts should be a discharge to
purchasers, ftcc.; that the surplus of
the purchase-money should be paid
to alien, after paying costs therein men-
tioned, for his own use ; that the trus-
tees should stand possessed of the rents
and profits till sale, upon trust, to be ap-
plied in the manner therein directed. It
then contained provisions for appointing
new trustees, aud for their indemnity in
the usual way. " Given at the Court,
&c. — — day of ■■» ■ in the 56th
year of the reign , &c"

(5) 1 Bla. Com. 989.

(c) S Salk. 3*. 13 Geo. 3. c 1$. s.
47. 1 Bla. Rep. 60S* Where an Act
of Parliament directs a fine at the wfll
of the King, it means at the constitu-
tional discretion of the Judges, 3 Salk.
33. 4 Inst 71. As to mitigating acid
remitting fines, 1 Chitty, on Onm, X.
809, 811. K. B. may give part to pro-
secutor, Ibid. 810. Bac. Ab. Indict-
ment, A*

with

Cb.*XI.i5ec.IL] Extraordinary Qev&iue. 2aT

with their payment, very little of them is now returned into the
King's exchequer, for a part of whose royal maintenance they
were originally intended. All future, grant* of many of these
fines, &c. are, however, by the statute 1 Ann, sU 1. €* 7.
s. 7. to endure for no longer time than the Prince's life who
grants them, and if otherwise granted, the grant shall be void
without a scire facias or inquisition, &c.

6. The prerogatives as to the custody of idiots and lunatics*
which constitute another branch of the King's ordinary reve-
nue, has been already considered (a).

III. With respect to the third and last branch of the ordi-
nary revenue of the Crown, arising from profits from certain
royal privileges or franchises^ which are sometimes in the hands
of subjects, and are frequently annexed to manors, &c. (as
forests, mines, fish and fisheries, waifs, wrecks, estrays, trea-
sure-trove, and deodands) it will be remembered that we have
already fully treated of them (6), and consequently any further
mention of them in this place is unnecessary.

SECT. II.

r *

As to the Extraordinary Revenue of the Crown.

We have already before pointed out the change which occur-
red about the period of the Revolution, in 1688, in the mode
of supplying the wants of the Government (c). The King's
ordinary or inherent revenues having been gradually reduced to
a very narrow compass, it became necessary, to resort to a fresh
system of parliamentary taxation and finance, which was an*
tiently but little known. The present taxation is principally
founded on the positive regulations of various statutes, which
it is hardly relevant to consider in this work. The revenue^
though under the superintendence of Government, being at the
present day peculiarly the revenue of the public, and its credi-
tors, and the civil list alone being properly the King's revenue,

(*) Ante, ch. 9. a. 1. (c) Ante, s. 1.

(fi) Ante, cb. 8. s. 3.

in

238 Otiier Crown Property. [Ch.XI.SecllIi

in bis own distinct capacity (a), it may, however, be observed,
that the following are the chief parts of the extraordinary reve-
nues of the Crown, vis. — The land-tax and mate-tax; the cus-
toms or duties on goods ; the excise duties ; the salt duties; the
post-office duties; the stamp duties; the duties on houses and
windows, on servants and backney-ooaches, and numerous
other taxes might be mentioned (4)— w a list," to use the words
of Sir Wm. Blackstone (c), " which no friend to his country
would wish to see further increased*"

SECT. III.

Other Cram* Property.

Ab the antient jewels and treasure of the Crown are neces-
sary to support the splendor and dignity of the Sovereign for
the time being, they are considered heir-looms, and descend to
the successor to thet Throne, and not to the executor of the last
Monarch (d)9 and, consequently, they are not devisable. But
it is said (*), that the King may dispose of them in his lifetime,
by letters patent

With respect to prerogative copyright, we may refer to the
admirable remarks {/) of Lord Erskine, at - the bar of the
House of Commons, as counsel of Carnan, the bookseller,
who resisted the monopoly of almanacks, obtained under a sup-
posed prerogative copyright in those publications :

"On the first introduction of printing, it was considered, as
well in England as in other countries, to be a matter of state.
The quick and extensive circulation of sentiments and opini-
ons which that invaluable art introduced, could not but fall
under the gripe of Government, whose principal strength was
built upon the ignorance of the people who were to submit to
them. The press was, therefore, wholly under the coercion *f

(o) Ante, s. 1. RqL Ab. 211. 1 Bla. Com. 428.

(6) See 1 Bla. Coin. 308, and Sin- (e) Cro. Car. 344.

. clair on Revenue, for information on (/) 1 Vol. of the Collection of 14.

this subject. Enkine's Speeches, page 40, 1, «• by

(c) 1 Bla. Com. 326. Ridgw.

(rf) Co. Lit. 18, b. II Co. 92. 2

the

ChJLI.Sec.IIL] Prerogative Copyright. 239

the Crown, and all printing, not only of public books, contain-
ing ordinances, religious or civil, but every species of puMic*-
lion whatsoever, was regulated by the King's proclamations,
prohibitions, charters of privilege, and, finally, by die decrees
of the Star Chamber.

" After the demolition of that odious jurisdiction, die- Lang
Parliament, on its rapture with Charles the First, asamttd the
same power, which had before been in the Crown. After the
Restoration, the same restrictions were re-enacted, and re-
annexed to the prerogative, by the statute of die 18th and 14th
of Charles the Second, and continued down by subsequent Acts
till after the Revolution. la what manner they expired at last,
in the time of King William, I need not state in this House.
Their happy abolition, and the vain attempts to revive them in
the end of that reign, stand recorded on your own journals, I
trust, as perpetual monuments of your wisdom and virtue. It is
sufficient to say, that the expiration of these disgraceful sta-
tutes, by the refusal of Parliament to continue them any long-
er, formed the great aera of die liberty of die press in this
country, and stripped the Crown of every prerogative over it,
except that which, upon just and rational principles of govern-
ment, must ever belong to the executive magistrate in all coun-
tries, namely, die exclusive right to publish religious or civil
constitutions — in a word, to promulgate every ordinance by
which the subject is to live, and be governed* These always
did, and from the very nature of civil government always
ought, to. belong to the Sovereign, and hence have gained the
title of prerogative copies."

It is, therefore, on grounds of political and public conveni-
ence, that the prerogative copyright exists, and its applicability
must be restrained to the reasons for its existence. The law
reprobates monopolies, and even in the case of the Crown,
they are only allowed to subsist when necessity requires it.
It is-- 1. As executive magistrate, that the Crown has the right
of promulgating to the people all acts of state and govero-
- merit This gives fhe King the exclusive privilege of .printing,
at his own press, or that of his grantees, all Acts of Parlia-
ment, proclamations, and orders of council (a). 2. As supreme

(a) 1 Bla. Htp, 100. SBorr. 661. tit Prerogative, F. 5w Generally, Miliar
2 Bla. Com. 410. And aee 5 Bac. Ab. o. Taylor. 4 Jhirr. 8505.

i. head

240 Prerogative Copyright* [Ch. XL Sec. III.

head of the church, he hath a right to the publication of all
liturgies, and books of divine service, &c. (a). 3» He is also
said to have a right, by purchase, to the copies of such lay?
book?, grammars, and other compositions, as were conquled or
translated at the expense of the Crown (A), And upon these
two ' last principles combined, the exclusive right of pjrint-
ing the translation of the bible is founded (c). There are,
however, very forcible objections against any prerogative mo.
nopoly in bibles, bon&Jtde published with annotations, prints,
and explanations. And in the case of Grierson, the King's
printer at Dublin, v. Jackson, which originated upon an appli-
cation for an injunction to prevent the defendant from printing
an edition of the bible in numbers with prints and notes;
Lord Clare asked, if the validity of such a patent as the King's
printer enjoyed, had ever been established at law ? and said,
that he did not know that the Crown had a right to grant a
monopoly of that kind* He further added, " I can conceive
the King, as head of the church, may say, that there shall be
but one man who shall print bibles and books of commop
prayer, for the use of churches, and for particular purposes,;
but I cannot conceive that the King has any prerogative to
grant a monopoly as to bibles for the instruction of mankind in
revealed religion. If ever there was a time which called aloujd
for the dissemination of religious knowledge, it is this ; and,
therefore, I should, with great reluctance, decide in favor, pf
such a monopoly as this, which must necessarily confine the
circulation of the book. As to very particular purposes, I have
no doubt that the patentee has an exclusive right to print ta-
bles and prayer-books ; but unless I am bound very strictly, I
will not determine upon motion that no man but the King's
printer has a right to print such works as these." The Crown
has no prerogative copyright in almanacks (d).

But the King has no prerogative property in the art of
printing, nor can he restrain the press on account of the s\fi>-
ject-matter upon which the author writes, or his mode of
treating it He has no controul over the press, but what

(a) l Bit. Hep. 105. 9 Burr. 661. (c) Ibid.

9 BUl Com. 410. And ice 5 Bnc. Ab. (rf) 2 Bla. Rep. 1004. 91 Geo. 3.

tit Prerogative, F.5. Generally MilUr c. 56. t. 10. And tee Ld. ErakieVt
cTeytoc 4 Bntr. 9305. Speech, in 1 rot OelL'of hit Speech**,

(*) 9 Bin. Com. 410. p. 49, *c.

arises

• y

i»

Ch.XI, Sec, III.} . Chow*. Property.

>• *.

fi4I

Arises from bis property in his copy (a). So the King cannot*
Vy law, grant an exclusive privilege to print any book which
dbe% hot belong to himself! If there, be no certain author, the.
property is not in the King, but is common and crown-copie&
are, as fri the case of an author, civil property; which U de-r
dnced, as In the case of an author, from the King's right of
original publication. The kind of property in the Crown, or
a pateritfee from the Crown, is just the same, incorporeal, inca*s
pable of violation, but by a civil injury, and only to be vindi-
cated by the same remedy, an action upon the case, or p.
bill in equity. The King's copyright continues after publica-
tion^).

The rights of the Crown as to lands (c) and franchises (d%
and as to bona vacantia, as general occupant (*), have been .
already considered*

There is this peculiar quality attached to the mode of ac- .
quiring property by prerogative, that the King cannot have a
joint property with any person in one entire chattel, or such a
one as k not capable of division or separation; but where the ■
titles of the King and a subject concur, the King^hall have the
whole ; in like manner as the King cannot, either by grant or -
contract, become a joint-tenant of a chattel real with another .
person (f) ; but by such grant or contract shall become en-
titled to the whole in severalty. Thus, if a horse be given to .
the King and a private person, the King shall' have the sole
property : if a bond be made to the King and a subject, the
King shall have the whole penalty, the debt or duty being one
sirfgle chattel (g). And so, if two persons have the property of ,.
a horse between them, or have a joint debt owing them on
bond, and one of them assigns his part to the King or is at- .
tainted, whereby his moiety is forfeited to the Crown, the
King shall have the entire horse and entire debt (A) ; for as it .
is riot consistent with the dignity of the Crown to be partner
with a subject, so neither does the King ever lose his right in .
any instance ; but where they interfere, his is always preferred

(«) 4 Burr. 2332. 2401.

<*) Ibid. 2401. 5 Bac. Ab. 596.

(c) Ante, ch, U. ■• 1.

(<f) Ante, ch. 8. s. 2, fee.

(t) Ante, ch. S. s. 2. div. 3.

(/) 2 Bla. Com. 164, 409.

(g) FlUb. Abr. t. dette, 38. PtowoY
243.

(A) Cro. Elic. *&>. PtoWtf. 849,
Finch, Law, 178. 1(1 Mod; 345. ; ft«
1 Wif htw. 50.

to

242 Crown Properly. [Ch. XL Sec.IIL

to that of another person (a); from which two principles it ip
a necessary consequence that the innocent, though the unfor-
tunate partner, must lose his share in- both the debt and
the horse, or any chattel in the same circumstances (4). How-
ever in favor of commercial interests, it has been recently
holden, that on an extent against one of several partners, only
the interest of that one can be taken (c). And as the preroga-
tive works no wrong, the general rule seems to be in the cases*
of real estates, that if by descent, &c a share of land come to
the King, though his Majesty cannot be joint-tenant with the
other proprietor, he shall not have {he whole, but only hi?
portion (rf). And the King and a subject may be tenant* &*
common (e).

Grants from the Crown will be considered hereafter (f), but
some important provisions in a late Act may be here stated
with propriety. By the 39 and 40 Geo* S. c 86. s. 10. after
reciting that it was his Majesty's most gracious desire that all
such personal estate and effects, as his Majesty shall be pos-
sessed of or entitled to at the time of his demise, and over
which he shall have the full and absolute power of disposition,
by his last will and testament, should be subject and liable to
the payment of all such debts of his Majesty as shall, during
his lifetime, be properly payable out of his privy purse : and
that it is reasonable that all such personal estate and effects as
any of his Majesty's successors, Kings or Queens of this realm,
shall be possessed 6f or entitled to in like manner, should also
be subject and liable to the like charge; and it is expedient to
fix and regulate what personal estate and effects of his Majesty
and his successors are subject to such testamentary disposition*
and in what form such disposition shall be made. It is enacted
and declared, that all such personal estate of his Majesty aad
his successors respectively, as shall consist of monies which
may be issued or applied for the use of his or their privy purse,
or monies not appropriated to any public service, or goods,
chattels or effects, which have not or shall not come to his
Majesty, or shall not come to his successors respectively, with

(a) Co. Lit. 30. shall only have alien's moiety, 1 lost,

(t) fcBla. Com. 409. 180, b. n. 2. 166, a. And ace 2 Cruise

(c) 1 Wightw. 50. Dig. 507, 8.
(rf) Plowd. 247, a. So if an alien and (*) Bro. Ab. Prerog. pi. 105.

natural born subject buy land, King (/) Post. cb. 16.

or

Ch.XII.3 Grown Remedies. 243

or in right of the Crown of this realm, shall be deemed and
taken to be personal estate and effects of his Majesty and his
successors respectively, subject to disposition by last will and
testament ; and that such last will and testament shall be in
writing, under the sign manual of his Majesty and his success-
ors respectively, or otherwise shall not be valid ; and all and
singular the personal estate and effects whereof or whereto his
Majesty or any of his successors shall be possessed or entitled
at the time of his and their respective demises, subject to such
testamentary disposition as aforesaid, shall be liable to the
payment of all such debts as shall be properly payable out of
his or their privy purse; and that, subject thereto, the same
personal estate and effects of his Majesty and his successors
respectively* or so much thereof respectively as shall not be
given or bequeathed, or disposed of as aforesaid, shall go in
such and the same manner on the demise of his Majesty and
his successors respectively, as the same would have gone if this
Act had not been made.

CHAP. XII.

Of the Prerogative with respect to judicial Remedies and
Proceedings at the Suit of ike Crown.

Though justice flows from the King, as its fountain,, he can-*
not administer it personally, or authorize any deviation from
the laws. The first principles of equity forbid that ajay one
should fye judge in his own cause; which may be one reason
that the constitution has, by an indiscriminate dictate, deprived
the Crown of the power of personally interfering with the ad-
ministration of justice. If this were not the case, the pre-
rogative, instead of being in fact subservient to, would be
above the laws, and the property of the subject would be
defenceless. (

There are certain substantial and important peculiarities in
favor of the King, with respect to legal proceedings, which
will be here mentioned; others, of less importance, will be in-
cidentally stated in the course of this and the following chap-

n 2 ter.

24*

Croxm Remedies.

[Ch.XIT

ter. Extraordinary remedies are assigned to the King, be-
cause, as Lord Coke observes, ( Thesaurus Regis estjundamen-
turn belli et firmamentum pacis\a)J

In the first place, though his subjects are, in many instances,
under the necessity of suing in particular courts, the King has
the undoubted privilege of suing in any court he pleases (6).
He may bring a Quare Impedit, or writ of right, or of escheat,
in B. EL, and may have a Quare Impedit in B. R., though there
have been a recovery in C. B. (c\ The Crown possesses also
the power of causing suits in other courts to be removed into
the Court of Exchequer, where the revenue is concerned in the
event of the proceeding, or the action touches the profit of the-
King, however remotely, and though the King be not a party
thereto (rf). And an account with the King can only be en-
forced in this his court of revenue (e). There can, however,
be no-doubt that the King may waive this prerogative, and suf-
fer his rights and interests to be discussed in actions between
third parties, out of the Exchequer {/). It seems, also, that
where a mere equitable question is raised, Chancery is the
better forum to entertain it, though the King be interested (g).
Though it has been truly said (A), that " for any thing which
foucheth the King, and may turn to his advantage to hasten
the King's business, the Exchequer hath jurisdiction over it,
were it a thing spiritual or temporal." Wherever also the
King's title be clearly elicited, even in actions between thircf
parties, the Court may, ex-officio, give judgment for the Crown
thereon (i). And the Attorney-General, or other proper offi-
cer of the Crown, is always made a party in any cause in Chan-
cery, &c. in which the King's rights are or may be called in-
question (£)•

The King is also supposed to be always present in court,

(a) Co. Lit 131, b.

(A) 4 hit. 17. Plow*. 243. Rol. R.
290. Finch, L.84r Fortetcue, K.101.

(e) 1 Bla. Rep. 131, 2.

(rf) Parker, 143. Anstr. 205, 214.
1 Bla. R. 131. 1 Chitty's R. 440. See
the excellent and luminous judgment of
the Court, in Anstr.. See further Man-
nings Pr. 161. Semb. Exchequer may
rente judgments m B. R. or C. B„ if
King interested therein. Ibid. 624.

(r) 2 Atk. 56. 2 Sch. and Lef. 618.
(/) 1 Bla, Rep. 13*.
(g) Hardr. 488. 2 Vex- sen. 448, per
Id. Hardwicke. 1 Bla. Rep. 131. 3 Atk.

m.

(*) Godb. 29 1 . 16 Via. Ah. 520.

(t) 2 Manning's Pr. 619. 5 Bac. Ab,
570.

(4) Ridgw. Cas. Temp. Hardv.320.
fi Vex. sen. 445, 448. 2 Sch. and LefT
618. U the Admiralty; S Price's R..97*

and,

ch.xno

Action by King.

245

and, therefore, cannot be nonsuit, though the Attorney-Gene-
ral may enter a nan vutt prosequi (a) ; and his Majesty is not
said to appear by his Attorney (b).

- The modes of redress which the -Crown may adopt against a
subject are— 1st, by the usual common law cations ; 2,*by In-
quisition, or Inquest of Office* and under this head, we will con-
sider extents in chief and in aid, and the wi-it of diem dansit
extremtm ; 3, by scire facias, to repeal grants, &c. ; 4, by infor-
mation of intrusion or debt and in rem; 5, by quo warranto ; *6,
by mandamus.

1. The general rule is, that the King may waive his. prero-
gative remedies, and fcdopt such as are assigned to his subjects.
He may maintain die usual common law actions, as trespass
quare dausumfregit, or for taking his goods (e). The only ex-
ception seems to be in the case of actions, which suppose an
eviction or disseisin, as an assize, or, it seems, an action of
ejectment (d). Hie King cannot maintain sueh actions, they
being inconsistent with his royal dignity, and contradictory to
the fiction of law, that the King cannot be dispossessed of pro-
perty once Tested in hhn^r). But the King may maintain a
quare impedity which supposes the claimant's possession {f\ and
might also maintain a writ of ravishment of ward (g). And
though the King chuse a 'Common law action, he may, by
virtue of the prerogative we have just noticed, commence it in
any court (A).

Where the King proceeds by suit at common law, and an-
other person is interested with him, it seems, that the action
may be brought in the name of the King and such common per-
son ; as, " if A. is bound by a written obligation in 1001, to the
King * and his customers,9 if the 100/. be not paid, the King
and the customers ought to bring their action upon the said
obligation jointly, in the name of the King and the customers:

(a) Co. Lit. 139. Finch, L. 81, 2.
2 Atk. 302. On prosecutions in the
colonies, ante, ch. 3.

(b) Finch, 1-81. 1 Bla. Com. 270.

(c) Thel.Dig. 1. 1. c. 3. 1 Rol. Ab.
373. Bro. Ab. tit Prerogative, pi. 130.
F. N. B. 90. 16 Vin. Ab. 537. tit
Prerogative, Q. pi. & As to a distress
at the suit of the King; see ante,
ch, 1 L s. 1.

(tf) Bro. Ab. tit. Prerogative, pi. 89.
Staundf. Prserog. Regis, 56, b. ch. 18.
Anstr. R. 215. 10 East, 106, 7. Eject-
ment on the demise of the Crown, 12
East, 96.

(*) 3 Bla. Com. 257.
' (/) F. N. B. 32.

(#) Staondf. Prsorog. Regis, 56, b.
ch. 18.
. (A) 3 Bla. Con. 2J7.

By

246

Inquests of Office.

[Ch.XIL

By all the Justices in the Exchequer, lecta qua seripto nititur a
tcripto variare non debet (a).99 And this distinction has been
drawn, that where the King has part of a thing, ratione praro-
gatixxp, there, if it be entire, he shall have the whole ; as if one
of several obligees bejelo de se9 or outlawed, the King or his
assignee shall have the action sole ; but if he has title to a par-
cel or part, by another, there the King may join, as if an obliga-
tion be made to a customer for customs, &c. there the King
and the customer shall join (b). And, it seems, that the King
and a subject may join in a presentment, or quare tmpedit (c).
Instances of the King and a subject joining are to be met
with (d) ; and in one case the King and his chaplain joined in
an action for trespass and contempt done in the King's palace,
and in presence of him and his justices (e). In cases of this na-
ture the writ may also abate for the subject, and stand for the
KingtA

The law having provided more efficacious and peculiar reme-
dies in favor of the Crown, it is very unusual for it to proceed
by the usual common law actions.

£• Proceedings under an inquisition or inquest of office, or an
qffice, as it is termed in the old books, is a peculiar prerogative
remedy for the benefit of the Crown, which was formerly
imith in use, and is still resorted to on many occasions* It is
an inquiry made (through the medium of an indefinite number
of jurors summoned by the sheriff (g)) ; by the King's officer,
his sheriff, coroner, or escheator, virtute officii, or by writ to
them sent for that purpose, or by commissioners specially
appointed, concerning any matter that entitles the King to
the possession of lands or tenements* goods or chattels (A).

(«) Jenk. Cent. 65, pi. 21. Fitzh.
Ab. tit. Joiuder in Action, 3. Vin. Ab.
tit. Prerogative, Q. 2.

(6) S Edw. 4. 4, a. 246. 19 Hen. 6.
47, a. 10 Hen. 4. 3. Dyer, 95. F.
N. B. 32. note (c).

(c) F. N. B. 32. 16 Vin. Ab. 535.
tit Prerogative, Q. 3.

(rf) Ibid.

(*) Bro. Abr. tit. Joinder iu Action,
pL 56. tit. Prerog. pi. 48 : cites 27 Ass.
49.

(/) Bro. Abr. tit. Prerog. pi. 100 :

cites 35 Edw. 3. and Fitzb. Ab. Briefs,
729.

(*) Finch, L. 323, 4, 5. Com. Dig.
Viscount, C. 5. Prerogative, D. 55.
Gilb. Excheq. 109. But in tbe Adrfrada,
2 Manning's Pr. 635, '■ the following
note : " Inquisitio evacuata in comitatu
titntolnia? quia fueruni tantum 1 1 Jura-
tores, liecorda, Hii, 13. H. 6. Jones,
IER Memoranda, tit. Inqvuiho." There
should be several inquests of lands io
different counties, &c. Staundf. Pre.
Regis, rnp. 176. fol. 51.

(A) Ibid.

These

CluXlL] Inquests qf Office* 247

These offices are of two sorts, one of entitling and another of
instruction* The former issued out of Chancery in cases where
an office is necessary to entitle the King ; and is under the
great seal, as the King cannot take but by the matter of record;
the latter issued out of the Exchequer Court under its seal ;
or if the land were under 5L in value, was taken by the King's
escheator, Ac of his own accord and virtute officii ; in cases
where an office was not necessary to entitle the King, for the
better instruction of the officer before seizure, and in favor of
the subject that hasty measures might not be adopted (a\
This inquiry is an office or presentment: an office which finds
matter to entitle the King to some possession, for an office is a
title for the King (4). This is an admirably constructed bar-
rier between the Crown and the subject: the object evidently
is to support that fundamental principle of English law, that
the King may not enter upon or seize any man's possessions
upon bare surmises, without the intervention of a jury (c).
And the object is attained by the opportunity afforded the
subject of interpleading with the Crown by traversing its title,
or setting up a better in a monstrans de droit or petition of
right, which will be considered in the next chapter. For in
cases where an office is a necessary preliminary, the King and
his officers cannot seize the property without it, nor has the
King a tide for many purposes {d). At present our inquiry will
be, 1st, as to offices with respect to real property: and 2dly,
with respect to goods and debts ; under which head also will be
considered the law of extents, and some general observations on
the law of offices will be submitted to the reader's attention.

1. With respect to lands, inquests of office were more fre-
quently in practice than at present, during the continuance of
the military tenures amongst us: when, upon the death of
every one of the King's tenants, an inquest of office was held
called an inquisitio post mortem, to inquire of what lands he
<lied seised, who was his heir, and of what age, in order to
entitle the King to his marriage, wardship, relief primer

(*) Oilb. Excheq. 109, 13, 4. 16 tie the Crown to any right. 2Atk.399,

Vin. Ab. 79. Office, B. 1* East, 102. post, 252.

(A) Finch, L. 324. That is a adding (c) Magna Chart. 9 Hen. 3. 29. 2

or evidence of a title which enables Inst. 46* Oilb. Excheq. 132. Hob.

him to sue. An inquisition of attain- 347. 1 Bla. Ren. 130. 3 Bia. Com. 259.
dcr is only to inform, and dots not enti- (a*) 12 Cast, 96.

seisin,

248 InqucsU. of Qffice. [Ch.XIL

seisin, or other advantages, as tlie circumstances of the case
might turn out. To superintend find regulate these inquiries,
the court of wards and liveries was, instituted, by statute 32
Hen. 8. c. 46. which was. abolished at the restoration of King
Charles 2. together with the oppressive tenures upon which it
was founded (a). Latterly the inquiries are whether the King's.
tenant for life died seised, whereby the reversion accrues tq
the King? whether A. who held immediately of the Grown,
died without heirs, in which case the lands belong to the King
by escheat (5)? whether B. be attainted of treason (c), -whereby
his estate .is forfeited to the Crown? whether C. who has
purchased lands, be an alien, which is another cause of forfeit-
ure ? whether D. be an idiot a nativitate, and therefore, toge-
gether with his lands, appertains to the custody of the King?
and other questions of like import, concerning both the cir-
cumstances of the tenant, and the value or identity of the
lands (i).

The principal rule with respect to offices is, that they are
not necessary when the King's title already appears in any
shape of record (e).

"Therefore if the King's tenant alien without licence, which
alienation appeareth by fine, or other matter of record, in this
case if there be another record found that proveth the lands
to be holden of the King in capitc, upon these two records
together, process shall be made against the party by scire
facias^ to come and shew why he should not make a fine for
the alienation. Like law, it is where there is a record to prove
that he that aliened is but tenant in tail of the King's gift, and
he pretending to be tenant in fee simple, doth purchase a
licence of alienation, and alieneth ; and after dyeth without
issue, which death is found by office, but nothing of this estate
tail or licence appeareth in the said office, yet upon these
records laid together, the King shall have a scire facias against
the alienees, to shew why the land should not be seized into
his hands, and his Highness answered of the profits since the
death of the tenant in tail ; for when he wa& but tenant in tail

(«) 3 BW. Com. 868. ford wa* frequently referred to. and if

(*) 12 Eatf; 96. cognised in 12 East, 96, both by tha

(c) Pat, 249. Conosel and the Court, Hot that tae

* (d) 3 fibu Com. 258. took is without fr inaiatiraCk*

(r ) Staundf. Preiog. &$, a* Staund-

it

Ch. XIL] Inquests of Office. 249

it appeareth that the licence was purchased upon a false sug-
gestion, and so void, and then the lands ought to revert to the
King, because bis reversion could not be discontinued (a).

" Like law hath been used where hU Highness is to seize
lands of priors, aliens within this realm ratione guerre, his
Highness doth it without any office, for in both, these cases the
King's title is notorious enough although it appear not qf record.
But yet in these cases his Highness must seize ere he can have
any interest in his lands, because they be penal towards the
party (ft)."

So (t) if possession in law or a freehold, be cast upon the
King, as it may be on a common person, there as the freehold
ought not to be in suspense, the King is entitled and may
seiie without any office, as in the case of a descent in remain-
der or reverter; or of an escheat, if, as seems necessary in such
a case, the deceased tenant held in capite or the King's title
otherwise appear of record (rf). Nor is an office necessary
where the Crown claims the temporalities of a Bishop during
the vacation of the see (*), or an estate under a devise from a
subject (/*), or the lands of an alien deceased ; but " if the alien
be living an office is necessary ; and if he obtain a charter of
denization and die, there, if the alien heir enter, since he was
freeman of the charter, an office is necessary to defeat the
estate (g)"

And by the statute S3 Hen. 8. c. 20. in case of attainder of
high treason, the King shall have the forfeiture instantly,
without any inquisition of office (A). In the case of other
attainders, it seems to have been considered that an office is
necessary to entitle the King, unless in the case of the attainder
and death together of the party (t).

With respect to the necessity of having an office, the rule
is, that in all cases where a common person cannot have a pos-
session, neither in deed nor in law, without an entry, the King
cannot have it without an office, or other record (£). As, if

(?) Stasmdf. Prserog. Regit, 56, a. * (/) Bio. Ab. Prerog. pi. 1 43.

(5) Ibid. 4 Term R. 734. (g) Gilb. Hist. Excheq. 109. Co.

(c) SUundf. 54, a. Lit. », b.

<<Q See per Lord Eileoboroogh, 19 (h) Staandi Prerog. R*g«, 59, ■.

t, 109, 110. See Ibid. 99, and 103. 4 T. R. 730, 734. post, 250.

(«) 4 Co. 58. . SavHe, 7. 9 Co. 95, (i) Staundf. 53, b.

b. SUun6X. Prolog, Regis, 54, a. Gilb. (*) SUundf. Pnerog. RegtJ, 55. 6

Hist. Excheq. 108. Coo. Dig. ftrerog. D. 67.

the

250 Inquests of Office. [Oh.XII.

the King's tenant alien in mortmain, or without licence (a), or
his Majesty claim upon a forfeiture (6), or a condition broken (r),
an office is necessary. With respect to forfeitures and the
right of the Crown, to enter without office under a proviso of
re-entry in a Crown lease, on non-payment of rent, &c. the dis-
tinction seems to be, whether or not such forfeiture appear of
record. If the rent, in such case, be made payable at the Ex-
chequer, an office seems necessary ; because, " if the rent had
been paid, the payment would have been entered of record,
and not being so, the default appears of record (<£);" aliter if
the rent be not so payable (e).

So, if the King claim the land of an idiot, lunatic* *&c. the
person ought to be found an idiot, &c. by office (f).

So, if he claim the year, day, and waste, of a felon attainted,
or the temporalities of a bishop (g), or a freehold, or inherit-
ance, as forfeited for a contempt (A).

So if he claim, as forfeited to the Crown, choses in action^
which belonged to an alien enemy ; and in such case, a peace,
before the inquisition taken, discharges the forfeiture (*)• And
an office seems necessary to entitle the King to a bond forfeited
by one of two joint obligees committing suicide (k).

There are some cases in which the King is not considered
as entitled till an actual se&ure, or scire facias^ eveh after the
office found.

As before observed (/), though an office be unnecessary in
the case of lands of aliens forfeited, ratione guerre^ an actual
seizure is requisite. And in the case of an attainder df high
treason, Mr. Justice Buller appears to have considered that an
actual seizure is proper ; though, as between the party attainted
and a wrong doer, it would not be necessary that the Crown
should actually seize the property of the former, in order to di-
vest him of it (m).

(a) Stauntlf. Prerog. 55, b. (A) Sav. 8.

(A) Sembl. Lev. 1. Cro. Car. 100, (t) Parker, 967.

173. Sir W. Jon. 78, 217. (*) Bro. Ab. Forfeiture, pi. 58.

(c) Sav. 70. 2 Rol. 215, 1. 15. (/) Ante, 249.

(rf) 2 Leon. 134, 139. Poph. 25, («) 3 Term R. 730, 734. See Dyer,

28, 53. 12 East, 113. 145, 6. 12 East, 114. And see pott,

(e) Ibid. Cro. Car. 200. 254, and note (rf), whether the King

(/) Staundf. 55. could gfant in such case, before office

fe) I°id- found.

«Th

e

Cb.XIL] Inquests of Office. 251

u The possession of the King," says Staundford (a), «' is of
two sorts, in law and in deed; in law merely by force of
law ; in deed, by actual taking by an officer, though without
office found.

u An office that entitleth the King to possession is suffi-
cient by itself, without any seizure or entry of the escheator, to
make a possession in deed in the King, if it be so that the pos-
session were vacant when the office was found. But if the
possession were not vacant, but another than he in whose right
the King seizeth, was tenant thereof at the time of the finding
of the office, then must the King enter or seize by his officer,
before the possession in deed shall be judged in him. And if
his Highness seize not by the space of a year and a day after
the finding of the office, then may he not seize without a scire
facias, to be pursued against him that is tenant thereof. But
hereupon is there a distinction to be made, whether that the
King is entitled unto by office, be it a thing manual, and
whereof profit may be taken forthwith, after the finding of the
office, or not. For if it be such a thing as is not manual, and
whereof there is no profit to be taken forthwith, until such time
it falleth, in that case* although the King be in possession of
the right of the thing, yet is he not in possession of the profit
thereof, until such time as his Highness actually by his officer,
when it falleth, taketh and perceiveth the said profit. As for
example, the thing the King is entitled to is no land, but ad-
vowson, rent, or a 'common, although that the King by this
office be patron of the advowson, or owner of the rent, or com-
mon* and thereby when the benefice becometh void may pre-
sent, or when the rent becometh, may receive the rent, or when
the common is to be taken, may use the said common ; yet, if
the office that entitleth his Highness be false, and he that was
in possession at the time of the office taketh the profit, whether
it falleth before the King's officer do take it, in this case this
taking is no intrusion upon the King's possession, for he was
never seized in deed : wherefore, being driven to his action, if
his Highness bring his quote impedit, or action of trespass, the
defendant may traverse the office with him in the said actions,
keeping still his possession, and need not to sue in the Chan-
fa) Praerog. Regis, 54, b. ch. 18. nised m Finch, Law, 3$5. 9 Co. 95, b.
And see the doctrine of Staumlf. reptg- Com. Dig. tit Prerogative, D. 68, 69.

eery

252 Inquests of Office. [Ch.XlI.

eery for the traversing of the same. Thus you miy see a dif-
ference between a thing that is manual and a thing that is not
manual. And the reason is, that when a stranger is tenant at
the time of the office, finding the office maketh no possession in
deed in the King before an entry or seizure, and then whether
the King's officer taketh not the profits when it falleth, but suf-
fereth him that was in possession to take it, then was the King
never seised, but he still remains in possession that was pos-
sessed at the time of the finding of the office until such time as
seizure be made for the King, which cannot be done at all
times, as it may be of land, but only at such times as the profit
thereof to be taken; that is to say, when it falleth, and that is
now past for this time, seeing it is already taken, and, there-
fore, the King in that case is driven to his action. But query,
whether his Highness may be brought in possession in these
cases by a claim, or not ?

" Like law is it, where an office is found, which doth not
entitle the King to the possession by entry, but only by action,
as where it is found that the King's tenant, for term of life or
years, or the grantee of a forest, hath done waste (a), or made a
feoffment by collusion, contrary to the statute of Marlebridge,
or such like. For it is a general rule, that in all cases where a
common person cannot enter, but is driven to his action, there
the King cannot have the possession but by like action, or else
by a. scire facias, after office found, in nature of the action; for
the office in this case entitleth the King to no other thing but
only to the action (ft). But query, of a feoffment that is found to
be made by collusion, contrary to the statute 34 and 35 Hen. 8.
c 5. for in that case, it seems, his Highness may enter without
scire facias, because the said statute appoints no action to be
sued in the case. And note, that in all these cases before,
where the King is driven to his scire facias, or other action, if
the office be false the party may traverse the office, with the
King keeping still his possession, whether it be in the Chan-

«

(«) 9 Co. 96, b, Sav. 1. So if the IX is held of the King, and it appear*
King's title appears by two distinct re- by a 6ne, that the manor of D. is alien-
cords, the King shall not be in posses- ed in mortmain, the King ought to have
smhi before a sewt foams, though a com- a tare facias before seizure; for it is
won petsoa iajraeb case might enter possible that there are two manoss of
without action, except in special cases ; D. 9 Co. 96, a.
as if* an office finds that the manor of (*) Ante, 247.

eery

Ch.XIL] Inquests, qf Office. 2£2

eery or any other court, and need not sue any ouster le
main, if it be found for him, because he never was put of pos-
session."

As the King takes by matter of record, so, generally, hi»
estate shall not be divested, without office, or other matter ^of
record* As if land be given to the King by deed inrolled,
upon a condition ; the grantor cannot enter for the condition
broken, without office (a).

' But where the King's estate depends upon the estate of
another, if the former be defeated, die remainder to the King
shall be divested, without office; as if land be granted to A*
for life, with power of revocation, remainder to the King; if
the uses are revoked, the King's remainder is divested without
more (6).

So if an estate be demised to A. for life, remainder to the
King, upon condition, that if the lessor pays to A* 10k he
shall re-enter; if he pays, he may re-enter, .and divest the re-
mainder in the King without office (c).

Here also should be noticed the restraints, imposed by the
legislature on grants by the Crown, of lands seized,, before qfffa
foundj and returned.

By the common law the subject was exposed to much incon-
venience, and his rights were endangered, by the Crown l^ing
enabled to grant or convey lands seized under inquisitions, to
third persons, before the claimant had an opportunity of put-
ting in his claim, that is before the return of the inquisition fyQ.
To remedy this grievance the statute 8 Hen. 6. a 16. provides
that no lands nor tenements, seized into the King's hands
upon inquest before escheators or commissioners, be in any-
wise let or granted to farm by the chancellor or treasurer of
England, or any the King's officers, until the same inquests
and verdicts be folly returned into the chancery or exchequer;
but all such lands and tenements, shall entirely and continually
remain in the King's hands, until, the said inquests, and ver-
dicts be returned, and by a month after the same return; unless
the party grieved come into Chancery (*), and proffer to tra-

4 «

(<) 6 Com. Digi tit. Prerogative, D. aw law. Staandf. 68, U
89* (#) ThfewattMNuia, •*■**• M» office

<*) 9 JU4. Ab. 315. L 45. wai Mcwwy 4o arfJUa the Kta* the

(c) Ibid. 1. 55. Mo. 546. oomniano* siast feme out ofCheitctry.

(<f) See further how ibis was at com- 5 Bap* £2,hu ..»..•.;...

verse

254 Inquests of Qffice. [Ch. XI L

verse the inquest, and offer to take the same lands and tene-
ments to form ; and if he do, then the lands shall be com*
mitted to him upon certain terms, till the traverse is decided :
and if any letters patent of any lands and tenements be made
to the contrary, or if they be let to farm within the said
month, they shall be holden for none.

The statute IS Hen. 6. c. 6. recites the above provisions,
and states that, to evade it, divers persons had sued to obtain
gifts, grants and farms by patent, before any inquisition or title
found for the King; pretending such gifts or grants were not
comprised or remedied by the former Act, though they are
within the same mischief; and therefore provides that no let-
ters patent shall be made to any person of any lands or tene-
ments before inquisition of the King's title in the same be
found in the chancery, or in his exchequer returned, if the
King's title in the same be not found of record, nor within the
month after the same return ; if it be not to him or them which
tender their traverses as before mentioned : and if any letters
patent be made to the contrary, they shall be void and holden
for none.

In a recent case on this abstruse subject (a), Lord EUenbo-
rough remarked, "that die object of the legislature plainly was,
according to the words of the Acts, that in all cases in which
the King's title did not appear upon record, (w if the King's
title in the same be not found of record") die possession should
be open to whoever could claim against the King, till the iinal
decision of the right; and that any grant to obstruct him should
be void : and the authorities correspond with this object" The
statutes being passed to redress a grievance are entitled to &
liberal construction (4) : and they relate not only to all cases of
seizure of lands on inquisitions ; but even it seems to cases
where the King, not having a title of record, yet has a pos-
session in law without office, and does not claim by inquisition,
as in the cases of an escheat, &c (c) ; and the other instancies
of a freehold falling on the King as in a descent remainder
reverter (d). Though in such cases offices would, generally

speaking,

(a) 12 East, 111, 12. 105. Though on an attainder for high

" (b) O. Lit 77, b. treason, the actual peasesfcioft and seisin

(c) 13 East, 96, 1 19. of the land are by statote 35 Hen. B.

((/) Ante, 349. IS East, 96, 1! 2, 13, c. 90. * 2. in the Kins; before office ;

yet

Ch.XIL]

Inquests of Office.

2SS

speakings be unnecessary to entitle to die Crown for other pur-
poses, and the seisin in law still remains in the King as
before (a), these statutes restrain him from prejudicing the
claims of his subjects by a premature grant of the property.
To enable the King to make a valid grant an office would
therefore be requisite in such cases ; and, as the King's grant
would be roid without it, neither can a plaintiff in ejectment
recover upon a demise of the Crown in the same circum-
stances. And in cases within the Act an office found and Re-
turned afterwards will not make an intermediate lease or grant
good by relation (b). But the statutes do not apply where
an office is unnecessary, and the King has a title of record ;
as for instance if the King lease; the rent to be paid in the
exchequer, with a proviso of re-entry on non-payment; hare
as the non-payment and forfeiture would by reference to the
records in the exchequer appear of record (c), the King may
grant, &c this not being within these statutes of Hen* 6. (d\
It will also be remarked the statutes do not extend to grant*
ef personalty (e).

By these statutes of Hen* 6. the claimant or traverser, &c.
of the claims of the Crown, is entitled to a lease of the lands
in dispute under and in pursuance of the statute 36 Ed. 3. c.
1 3. by which if any come before die Chancellor, (&c.) and shew
his right, by any shewing by good' evidences of his right, the
Chancellor (&c) by his discretion shall let the lands seized to
the party " yielding to the King the value, if it is adjudged for
the King, in manner as he and other Chancellors have done
before him by their good discretions :" so that he to whom it
shall be letten, find security to do no waste or destruction

till judgment thereon (/)." " By the words of the statute,'1

u

yet tintil office found and returned or
something equivalent, it dee* not seem
dear that a gnu* by the King, of toe
forfeited land** U not within the prohi-
bition of the statute, 18 Hen. 6. See
Dyer, 145, 6. 12 Bast, 105, 114.

(<0 Stauodf. 54. It East, 104,

(*) 9avtte, R, 70.

(c) Ante, 250.

(d) 12 East, 113* 14.

(#) StaundX Pra% Reps, 54s a. 69, •.

(/) The wording of the statutes, 9
Ben. 6. c. 16. and 18 Hen. 8. c 16. are
sqhstaneiatty the same as- to kttmg tfcs
lands to the claimant ; Use farmer has
it " to hold, till the issue be taken
and determined for the King or the
party:" the latter says, "to hold till
the issue takes he found and discussed
for the King or the party." And other
officers besides tfce Chancellor bare this
power of letting. See also ante, 253.
note (t).

says

sua

Inguestx of Office i

(CtuXlL

says Staundford (a), " it should appear that the Chancellors
before this time, by their discretions, had used to let the land*
to the party \o farm ; and that is true, for the King used sw to
do upon a petition, which was made to him by the order of the
common law, instead of a traverse now used. And therefore I
think he may do so at this day, both upon a petition and* mo***
tram de droit, although the statute mikes n* mention thereof*
for so it was used to do by order of the common law." f* And it.
is to be noted," continues Staundford (6), "that the iktuingvf
the evidence is only rehearsed to the letting of the lands to form
and not to the traverse. For he may traverse without shewing
any evidence, but not have the lands to form. Also by these
statutes he is not bound to any certain time for taking of his
traverse, but only for the taking of the lands to form; for he
may tender his traverse when he will, so he desires not the
form of the lands. But if he will have them to form he must
tender his traverse within one month; and now by the statute
of 1 Hen* 8. a 16. he has'three months liberty to do it Also
note the things that he must find surety for : that is to say, to
sue with effect, to pay the rent after the traverse be discussed,
and to do no waste or destruction. For in this word rent is im-
plied all the rent that shall accrue between the taking of the
form and die discussing of the traverse (c) ; and yet it is not so
expressed. And the lease that is made to him that tenders the
traverse is not of any term certain, but only by these words
donee ditcusmm Juerit ; for the words of the statute are so.
And therefore as soon as the traverse is found against him that
tendereth it, by and by the lease he had in the land by force
of the statute is void, without any further process. Howbeit
forasmuch as the words be to hold till the issue upon the said
traverse taken be found and discussed for the King or for the
party, I would learn if the party be nonsuit (d) upon his
traverse, or that the traverse be adjudged against him upon a
demurrer in law, whether the lease should be void or not, like
as if shall be upon the issue found. And it seems it shall be,
by the words comprised in the said statute of 96 Edw. 3. but
not by any words comprised in the said statute of 8 Hen. 6.
for the words of the 36 Edw. 3. are " till it be adjudged."

(d) See at to nonsuit on ft MonHrant
dt droit, or Trmerre, pott.

(a) Pre. Regit, 67, b. fcc

(•) Ibid. 68, a.

(c) See Birab. R. 25.

The

Ch. XII.] Inquest* of Office. 2$ Y

The rights of the Crown to the mesne or intermediate profits
of tenements to which k is entitled, are also of a peculiar '
natus*. " I£" says Statandford («), « the King have a title,
right or interest tp any lands or tenements} his Highness
when fee sciseth, shall be answered of all the mesne issues and
profit* from . the time when his said tide, right or interest
accrued) and whether it be a right of entry or title of entry*
it makes no difference in the King's ease* As for example, the
King enters fcr a-condition broken* he shall be answered of all
the issues and profits since the condition broken; and in that
case a common person shall not hare the issues and profits but
from the time of his entry. Like law is it if the King's tenant
alien in mortmain, and the King enters ; but it is otherwise if
he enters fa* mortmain in lands not holden of him, upon a title
which accrues to him in default of other lords. The law is the
same where the King is entitled to seize, for that the lands are
of his foundation, and aliened contrary to the statute of West-
minster, 2. c. 41. In this case he shall be answered of all the
mesne issues accrued from the time of the alienation. And
note also, that if the King make any grant which is not suffi-
cient in the law, or is deceived in the making of the same, by
reason of its being made upon a false suggestion ; in this case
if he resumes this grant and annuls' it jure regis, as he? may,
he shall then be answered of all the mesne issues and profits
which were lost by means of the said insufficient grant : but if
the King be entitled to any lands nomine districtionk) there he'
shall not be answered of the profits but from the finding of the
title, as in case where the King's tenant in chief aliens without
licence, and an office is thereof found, in this case he shall not
be answered of the profits from the time of that alienation, but
only from the time of the finding of the office, or from the
time of a scire facias returned, where the alienation is of record*
And note that where the King is to be answered of the mesne
issues and profits perceived and taken of any lands which have
eome to sundry hands, since the King's tide first accrued to
the same, there every one of those who have severally so per*
oeived and taken the profits, shall answer for his own time, and
not one for all."

By the statute de escheatoribus, 29 Edw. 1. if the escheator, by

W» Prvrog. Refrif , fc. 21, fbf. 8*, b.

4 writ

45* IfiquetkyfOffk** [Cti.XllJ

writ out of the Chancery, seize land into the King's hand, and
after upon inquisition, no title is for the King to have the cu&*
tody, an ouster le main shall be awarded for the party out of the*
Chancery. Provided, that if any thing afterwards may be
found in the Chancery, Exchequer, or King's Bench, for thrf
King, a scire facias shall go out against the party. And if the'
King have right, it shall be answered of all the issues from thtf
time of the escheator's* first seiiirig of the land.

The requisites of the office, in jtoint of tbf m, will be consi-*
dered hereafter. But a very important provision in the statute 2?
and 3 Edw. 6. c. 8. may be here noticed. By the 8th section rf
that Act (a) it is provided, that *' where any (b) inquisition or
office shall be found by these words, or the like, * Gbtod de qua
ixl de quibus tenementa pradicta tenentwr juratores pmdicti igno-
rant f or else found holden of the King, * per qua seroitia jura*
tores ignorant? it shall not be taken for any immediate tenure
of the King in chief; but in such case a melius inquirendum
shall be awarded, as* hath been accustomed of old time (c)"
Under this statute it was considered; in a recent case (tf), that
an office or inquisition not finding of whom the lands are
holden, is in substance the same as one finding the ignorance?
expressly ; for, in favor of £he dmfcsiofr tb find as directed, \t
must be presumed that the jurors did riot know, rathet than*
that they knew, and would hot return the feet ; and that hi
either case, the award of a melius inquirendum #ouId be ne-
cessary.

If the office be found against the King, a melius inquirendum:,
or further inquiry under the former commission, may be
awarded for the King. But in good discretion, no tnetitis in-
quirendum shall be awarded in such case, without sight of some*
record, or othef pregnant matter for die King, to skew*
the former was mistaken. And by pregnant matter for the
King is meant, matter pregnant tfith evidence of the Ktng^

rijght (e).

Bat*

* -

.. («) SeeLd, Coke's comments on this (c) See Co. Lit. 77, b.

faction, Co. Lit 77, h. (d) 12 EJait, 96, 115.

(A) The statute is pot confined to the (<?) 8 Co. 168. 8 Ves. 555. The
&Q>is?tioii* meritioned in thepretfkra* melhn in^kemhm iSgniitsbl'eonlf on
and other sections of the Act ; but re- the part of the Crowu, and i* given be-
late* to all inquisitions as, to lands. • 12 .cause the Crown cannot traverse as the
96< , subject can. 3 Atk. 6» No

rendum

Ch.XII.3 lwutts of Office *5*

* ♦

. But, if the melius inquirendum be found against the King,,
he is thereby precluded from having another melius inquiren-.
dam* for if thip were allowed* it would lead to infinity, for by
the same reason that he might have a second, be might have
them without end* However, if the first writ of melius inqui-
rendum were repugnant in itself, if it did not give authority t#
find such an office as was found; as, where the writ was to in*,
quire, whether at the time of the death of a .person who died)
in the reign of Queen Elizabeth, the manor of O. was holdea
of the lord the King that now is, another writ of melius inqui-
rendum may be awarded (a). ,

2dly> As to Personalty, the general rule seems to be, that:
the King is entitled, without office or other matter of record :
as in the case of goods and choses in action of felons, wreck of
the sea, treasure trove, or the profits of lands of clerks, &acpn->
victed of felony, or of persons outlawed in a personal ao-j
tion {b). So, in the ease of Simony, the King shall present
without office, and it is unnecessary, on the nomination of
the Crown to an office void by the statute 5 and 6 Edw. $•
c 16 (c).

On this subject Sir Wnj. Blackstone remarks (d), that " with
regard to other matters, the inquests of office still remain ift
force, and are taken upon proper occasions ; being extended not
only to lands* but also to goods and chattels personal, as in the
case of wreck, treasure trove, and the like, and especially as to
forfeitures for offences. For every jury which tries a man fqr
treason or felony, every coroner's inquest that sks upon *felo
de se9 or one killed by a chance-medley, is not only with regard
' to chattels* but also as to real interests, in all respects an in-
quest of office } and if they find the treason or felony, or even
tie flight of the party accused (though innocent), the King is
thereupon, by virtue of this office found, entitled to have his
forfeitures; and also in the case of chance-medley, he or Jug
grantee are entitled to such things, by way of deodand, as have
moved to the death of a party."

By the statute 1 Hen. 8. c. 8. the escheators were to sit in

rendum on an Insufficient office taken by (b) Staundf. Praerog. Regis, 56, a.

an escneator hirtut* officii and of his own $a*. 8. 2 Ventr. 270. S Barnew and

' accord, and not by rirtue of a writ : but Aldec R, 358. 2 Manning Pk. Excb«

audi office shall be deemed Tokl. F. MS.

N. B. 255. (c) Ibid. Com. Dig. Preiog* Dr. 76.

(a) 8 Co. 168. ' (d) 3 torn. 259. ' '

s2 * opeif

260 Inquests of Office. [Ch.XII.

©pen places, and the sheriffs were to return jorofs, and the in-
quisition was to be taken by indenture, whereof one part was
to remain with the foreman of the jury, and the other part was
to be returned into the Chancery or Exchequer, within one
month ; and from the Chancery it was to be transcribed into
the Exchequer. The reason why it was returned into
Chancery was, because that was a Court that was always
open, since the Chancellor was always an itinerant with the
Prince (a).

On a fine imposed by K. B. for an offence, the amount be-
comes, by the record of judgment, a debt due to the King
insfanter (6), and process may either issue out of that Court, or
the fine may be estreated into the Exchequer, and proceedings
taken therein. The process is by capias pro fine (c), or by fc-
varifacias9 which, as we shall presently see, is abolished on ex-
tents for the King's debts. A levari facias may also be issued
after conviction, on an indictment for not repairing (d). If the
King is willing to remit the fine, the Attorney-General must
acknowledge satisfaction by an entry to that effect on the re-
cord (e) ; but it should seem, that the defendant is not entitled
to his discharge from imprisonment in respect of such fine, on
the ground of his being an insolvent debtor, as it is not a debt,
but a punishment for a crime (f). And in a late important
case, Rex v. Woolf and others (g), it was held, on the au-
thority of an old case (h)9 that in the case of a judgment for a
misdemeanor, that the party convicted be imprisoned for two
years, and pay a certain fine, and be further imprisoned till
the fine be paid, a levari facias may issue for the fine before the
expiration of the two years. The Court considered the party
in confinement as a punishment for the offence; but appeared
to hold that the Crown has the power of taking body and pro-
perty for its debts. This will be more fully noticed under the
head of extents.

(o) Gilb. Excheq, 110. and Finch, L. 2142. 13 East, 190.
526. (g) 1 Chitty's Rep. 432. And thii

(A) 3 Salk. 32. *as acted upon in tbe subsequent cases

(c) 1 Ibid. 56, a. * of Carlile the bookseller, convicted of

(cf) Com. Dig. Execution, publishing several libels ; and of Sir

(*) Bunb. 40. Trem. P. C. 30$. See M. topes, convicted of bribery,
form of entry of satisfaction. Trem. (A) Hex v. Webb, 2 Show. 173. Skin-

F, C. 303. 4 Hargr. St. Tr.,760. , ner, 1& Sir T. Jones, 185.

(/) t M. and S. 201. ac. 4 Burr.

In

Ci.XIL] Extents. 261

In the case of an outlawry in a personal action, a levari fa-
cias is the process to be issued : and, on proper application,
the proceeds which in point of law belong to the King,, may
be paid over to the plaintiff in the action (a).

On a levari the cattle of strangers levant and couchant ou
the defendant's property may be taken, for they are considered
issues thereof (4). And by Lord Holt (c) : " if A. being ,put-
ktwed, makes a feoffment during the outlawry, the feoffor puts
in his cattle, doubtless these are issues, because the feoffee
takes the land in the same plight as the feoffor had it, but
the feoffment notwithstanding is good (d). But the interest of
the King to take the profits continues notwithstanding the* fe-
offment, though the opinion in 21 Hen* VII. 7. a* is contrary*
If issues be returned upon a juror, they shall be levied upon
the feoffee. If A. be outlawed, and aliens his land before in-
quisition taken, the alienation prevents the King from* taking
die profits, otherwise if the alienation were after the inquisi-
tion found ; and this is the constant course of the exchequer/9

For the recovery of debts and penalties, and other monies
due to the Crown, the usual remedy is by the prerogative writ
of extent which will be considered under the following arranger
ment r

hi general.
Part I. — Extents in chiqf.

Sect. 1. Commission to find debts and inquisition thereon :

and herein of debts due to the Crown.

2. Of the scire facias, to justify the issuing of the ex-

tent in chief.

3. Form. — Teste. — The issuing and return, &c. of ex-

tents in chief.

4. When an immediate extent may issue. — Affidavit

to obtain it and trial thereon.

(«) Tidd't Practice, 5th ed. 139, 40. (e) U. Raym. 307.

6th ed. 13S. (<0 21 Hen. 7. 7, a.

(*) Ld. Raym. 306. 16 Via. Ab»519. '

6< Ex-

262 Extents. £Ch.XIlJ

Sr Execution of extent in chief.
In general.
What may be taken*
Body.

Goods and sums of money.
L^nds.

Debts and credits, and herein,
6« Of seizing debts, specialties, and credits due to the
Crown Debtor : and herein of extents in chief in
the several degree, i. e. against debtors to the
Crown Debtor, &c,
[Resisting extents and proceedings thereon, Ch. XIII.]
7. Venditioni exponas.~~-Order for sale of defendant's

lands, &c.
8* Costs*
9* Poundage.

Part II. — Extents in aid.

Sect. 1. In general. The course of proceeding, &c.

2. To what degrees debts may be seized on extents in

aid.

3. What Crown Debtor m»y issue an extent in aid.

4. For what sum an extent in aid may be issued. Affi-

davit and fiat.

5. Form of. — What may be taken. — Motions. — Plead*

ing. — Costs. — Poundage, &c.

Of Extents in general

It was ever a principle of law, that the Crown might seize in
execution consecutively the body, lands, and goods of its
debtor and even debts due to him ; but the right to take them
all at once, was not it seems vested in the Crown at common
law (a), but was confined tp executions by extendi facias against

(«) Glib. Exebeq. 7.

the

\tjie <#nuscf pp a st&ute merchant of st#ute staple,, which were
inq^u/n$nte having peculiar properties in favour of trade (a).
Th$ writ .of extent as a CrojArn process, appears to be founded
on ±he statute of S5 Hen. 8. c. 39 ( J), By the 55th section of
that statute, it is enacted, " that all and every suit and suits,
^fcich thereafter should be had, rnade, or taken of, for or upon
any debt or duties, which thereafter $^pul4 grow or be due to
jtfee Kirjg, in the several offices and courts of his Exchequer,
duchy g{ Lancaster, augmentations of the revenues of his
Crown, sijirveyors. general of his manors, lands and tenements,
piaster of tfee yvjxrds and liveries, and.cc«urts of the first fruits
and tenths, or in any of them, or by reason or authority of <any
p{ .them, phpuld be severally sued in such one of the said courts
.and offices, in the which court and office, or by reason of the
yrbich court and office, the same debt or duty should grpw or
bficorne due, or in the which office or court the recognizance,
obligation or specialty should be or remain ; ?nd that every
such several suit and suits should be made in every of the sai4
several offices and courts, under the several seals of the said
several courts, by capias^ extendi facias^ subpoena, attachments
/wd proclamations of allegiance, if need should require, or any
pf .them, or otherwise, as unto the s$id several courts should be
fhovght by their discretions expedient for the speedy recovery of
the King's debts. And that die said Cpurt of Exchequer, and
§XL and every of the said Courts, should Jbave whole and full
authority and power, to hear and determine all and every such
$u& and suits, as thereafter should be jt?ken, commenced and
.pursued far the intent abov£ specified ; and thereupon $o
pprprd, make and do execution by an4 upon the body, lanyds
and goods of the party or parties that should be so condeninefL
^CQQjrdingly."

Statutes merchant, statutes £t$ple, find recognizances in the
nature of statute staple, pre nojy out of use. But jtfye powers
0u4 energies of those in^runiept^ are still in force in favour pf

(a) Hob. 60. 2 Rol. Ab. 475. 2 reader will observe, On perusing the fol-

Wtn*. Saund. 70, b. lowing pages on this difficult subject,

• ty) Set Bono. 933. W«*8t. 352, 3, that the author derived cqnfti durable as-

JJtc. i J£aqnjng, Pr. 513. 4 T. R, sistance from Mr. West's wor)t on ex-

41 2. per Ashhtirst, J. As to this statute tents,
in general. See 2 Bla. Rep. 1295. The
. \ the

264, Extents^ ICh JCIL ■

the Crqwju ,And since the statute of Hen. & the writ of
extendi facias or extent* by which the sheriff is authorized in
one. writ to take person, goods, lauds and debts, has been the
constant execution at the suit of the Crown, against its own -
immediate debtor.

The writ of extent, as a prerogative process, is of two de-
scriptions : one, called an extent in chief, issues for the benefit
of the Crown against the Crown debtor, or his debtor, on the
principle that the King is entitled to the debts due to his
debtor; the other is called an extent in aid, and is issued
ag&inst the debtors of the Crown debtor, at the instance and
for the benefit of the latter.

Extents in chief are also of two descriptions : the one is '
called an immediate extent, that is, an extent which issues with-
out the intervention of a scire facias, on aa affidavit that the
Crown debt is in danger ; the other is aa extent, which is the
ultimate process of execution on a Crown judgment, obtained
on a scire facias or other action, there being no affidavit that
the Crown debt is in danger* The immediate extent is founded
on the words in the 3$ Hen. 8. which give the Court of Ex-
chequer power to issue an extent, &c. " if (as is established by
the affidavit of the debt being in danger) need shall require, or
otherwise as to the court shall be thought, by its discretion («)*
expedient (which discretion is evinced and expressed by the
fiat of the Court or a Baron) for the speedy recovery of thfc
King's debts."

Extents in chief are either issued against the immediate
Crown debtor or against the debtor to such debtor* In the
latter case the extent is called an extent in chief in the second
degree. An extent is first sued out against the Crown's im-
mediate debtor; on that extent an inquisition is held, under
whiqh debts due to the Crown debtor are found and seised into
the Crown's hands. A second extent then issues on that finbV
ing against the debtor to the Crown ' debtor, under wttoh
second extent also an inquisition is taken, by which the debts

(«) J! Jft t» tbt itatute 38 Hen. 8, ! wai never done before, and may be jof

thioktb* 4*f» jiotltMftitfeowdii* tabefaievop* consequence." *er Bafoh

cretiou to alter the ooiine and nature . . Comjoa, 6lra»ttKV * -"'l *

of proceeding, or to do a thinj that

- f

due

Ch.XlI.PtL Sec. I.] Extents. 265

due to that 'debtor are found and seised into the Crown's
hands. A third extent then issues against the party so found
to be a debtor by the preceding inquisition, and so on to the
fourth degree, &c.

Part I. — Extents in chirf.

Sect. I. — Commission tojtnd Debts, and Inquisition thereon atid

herein of Debts due to the Crown.

It would be contrary to the first principles of law and justice,
to issue process of execution before it is ascertained what debt
is due to the Crown, and such debt become a debt on record.
It may, therefore, be laid down, as a general rule, that till the
debt, not being per se of record, be Ascertained, and become &
record by a commission and proceeding thereon, the Crown is
not entitled to process of execution, unless in cases of danger,
or insolvency, when an immediate extent may be issued, subject
to the rules which will be mentioned. ' The Crown has no dec-
tion on this subject. It is bound strictly by this principle.

With respect to the question, what is a debt of record?
it seems, that at common law, there is no exception in the case
of a Crown debt from the general rules prevalent on this sub-
ject in common cases. There are, however, some few excep-
tions by statute.

By the statute 33 Hen. 8. c. 39. s. 50. it is enacted,
" That all obligations and specialties, which shall be made for
any cause or causes touching, or in anywise concerning, the
King's most royal Majesty, or his heirs, or to his or their use,
commodity, or behoof, shall be made to his Highness, and to
his heirs, Kings, in his or their name or names, by these
word% Domino regi, and to none other person or persons, to
his use, and to be paid to his Highness by these words, solvend.
* eidem Domino regi, hared? vel executoribus suis, with other
words used and accustomed in common obligations j and that
all such obligations and specialties so to be made, shall be J
good and effectual in the law to all purposes and intents, and ,
shall be of the same nature, kind, quality, force and eflect, to
all intents and purposes as the writings obligatory taken and

acknowledged

< »

* j

«6J5 Extents. [X*,XJI.PtJ.gec.L

Acknowledged according to the tfqfutevt the ftaplevt West-
minster bad) at any tune before th^e making of ihaf; Act, been
taken* used, exercised* and executed against any lay person."

This statute, it will be remarked, gives the efiect of recqrds
to those bonds only which are made for any cause concerning
the King, and in the form therein prescribed; and it is, there-
fore, doubtful whether an obligation to the King, not saying
* haredJ vel exec. isms99 is within the statute (a). It is, however,
held, that a bond to the King, to be paid " to his heirs or
jwccessorsj' or conditioned " to account for monies received
either on account of the excise, or <qq the private account of the
obligee" or with a condition for causes touching the King,
without shewing by wfeat particular authority, or officer of the
Crown, it was taken, is within the statute (&). And where the
•bond is within the statute, the remedy by .extent is given to the
King, though the bond be made not to him, but to another for
his use {c)

Debts due from tax-collector^ have, in certain, cases, die
.effect of debts of record, it being enacted, by the statute 43
Geo. 8. c. 99. s. 41. that " whenever any money of the duties
therein mentioned shall be detained in die hands of any col-
lector, and the same or any part thereof canpot be recovered
by or under the warrant or authority of the respective commis-
sioners, or the said respective commissioners shall neglect to
issue such warrant, then such part thereof which cannot be so
recovered, which shall have arisen from the said duties, shalji
be recoverable as a debt upon record to the King's Majesty, his.
heirs and successors, with all costs and charges attending the

same."

With respect, however, to simple contract debts, and bonds,
and other specialties, not within the statute of S3 Hen. g. the
iirst step towards rendering such debts and bonds, records, on
•which an extent may be issued, is *e issuing a commission,
(which seems to be necessary as well by the equity of the sta-

(<x) Moore, 193. 1 Anderson, 129. Cornwall to the Prince, is within this

Cam. Dig. Dette, 9. statute ?

\b) Sunb. 58. 2 Brown, Pad. Case*, (*) 4T.R. 413, *. Bonds given by

$75. Iill. Ent. 423. West's Appeu- governors of proprietary colonies, for

dix, 323. It is a quart whether a bond observing acts of trade, should be given

to the King, with condition to answer in pursuance of the statute of Hen. 8.

'and pay the rfyenocs of the 4achy of 1 Chalmers,' Co|l« Op* 459,

tute

Ch.XII. Pt J. Sec I.] Extents. *ffi

tuts of Westminster (a), *s by express authority (^i ) under
which an inquisition m held to find the debt, and when return-
ed, such inquisition becomes matter of record (a).
. The commission is issued by the dberk in Court of the Crown*
pnd )s directed to two {commissioners, whom H empowers to
inquire, as well on the oaths of good and lawful men, Jfcc. as
by the testimony on oath pfony1 other credible persons, (and
as some of the precedents, &c. run, 'f by all other ways, means*
and methods, whatsoever/) whether the defendant be not
indebted to his Majesty in any and what sums of money, and to
return the inquisition taken thereon at the return of the com-
mission ; and it also commands the sheriff (of Middlesex), in
his character of sheriff, to cause a jury to attend before the com-
jnissioners; and it empowers the commissioners to summon be-
fore them witnesses, and it concludes " by warrant indorsed,
and by the Barons {d)J9

The " warrant indorsed," at the conclusion of the com-
mission, is an indorsement of his name on the commis-
sion by a Baron, or die Chancellor of the Exchequer, and
is the fiat or authority for its issuipg. And although in
practice, it seems, that the commission is not taken to the Baron
to be indorsed, till after the inquisition has been taken on it,
when the commission is taken to him for his indorsement, and
the extent and affidavit for his fiat at the same time (e) ; still,
if no application has been made for the warrant, and none has
been obtained, the proceedings are irregular (f). The com-
mission is vested in die name of the Chief Baron, and signed
by the King's remembrancer, and sealed with the Exchequer
seal. It may be issued and tested in the vacation, but must be
returnable in Term (g).

The defendant is not entitled to notice of the execution of
the commission on the extent; but, it seems, the Court will,
on application, make an order that reasonable notice be
given (A).

The usual, if not universal, practice is, to adduce no evi-

(a) 13 Edw. 1. st. 1. c 18. judge. Dyer, 228, marg. 2 Manning

(b) Cro. Jac. 569. Brown, Pr. Ex. Pr. 235, b.
'364. («) Ibid.

(c) See Wert on Extents,- c. 4. (/) 8 Price, 378.

(rf) Jbid. On occasions of import anee (g) West, '22. -

inquisitions have bee* taken before a (4) J Vea»8S9.

dence

26*

Extents. [Ch.XII. Pi'I. Sec.L

dence of the debt before the jury, except the affidavit, whicft
is prepared for the purpose of obtaining die immediate extent.
Oil1 this affidavit, and this affidavit alone, usually, if not uni-
versally, the jury find the debt (a). If witnesses duly summon-
ed 'refuse to attend, or to answer proper questions, the Court
will grant an attachment (b ).

The statute 1 Hen. 8. c. 8. s. 2. (c) enacts u that every
eschfeator and commissioner shall sit in convenient and open
places, according to the statutes theretofore made. And that
the; said escheators and commissioners shall suffer every person
to give evidence openly in their presence, to such inquest a&
shall be taken before any of them, upon pain of forty pounds."
Upon this provision, which seems to be confirmatory of the
common law, it is considered that the inquisition is irregular,
if secretly and clandestinely taken, and that on the taking of the
inquisition on the extent, a stranger has a right to prove his
property in the goods seized (d). The Crown cannot be a
sufferer by this doctrine, as a melius inquirendum may issue if
the finding of the jury be dissatisfactory. At all events, per*
sons interested may appear on the execution of the writ and
cross-examine the Crown witnesses : and as observed by C.
B. Thomson, * it would be hard to put the parties to the ex*
pense and trouble of traversing the inquisition ; and irrepara-
ble injury maybe done, when, if the evidence had been suffered
to proceed, and had the question proposed been allowed to be
put, the truth of the matter would have been shewn (e)."

Simple contract debts, and specialties* not included in the

(a) West, 22.

(A) Parker, 269. Witness cannot
refuse to answer a question which might
render him liable to the Crown civilly
for a debt, 46 Geo. 3. c. 37.

(c) That the statute applies to inqui-
sitions before sheriffs. 4 Co. 58, a.

(<f) Bunb. 233. This doubted in 3
Price, 454. As to the testimony of the
claimant himself, 1 Fowl. 160* 6 Bac.
Afc. 129, 3D.

(<0 The King v. Blokley, Exch. Sit-
tings, after M. T. 1816. The facte of this
case are reported in West on Extents,
p. 69, and the judgment in the Appen-

3

dix, p. 330. S. C. in 3 Price 454. It ap-
pears that the Court did not decide on the
express point in Bunbury, but held the
inquisition irregular specifically on the
ground that the under-sheriff had re-
fused to suffer a cross-examination of one
of the Crown* s witnesses, on a question
which related not only to the property
in the goods seized being in a stranger,
but brought under consideration the
character in which the defendants had
the goods and related to their possession
of them. But C. B. Thomson seemed to
approve of the decision in Bunbury.
SeeS.G 3 Price's R. 463.

statute.

Cb.XII.PtvL Sec J.] Extents. sflfc

statute 33 Hen, 8. should be found by the inquisition; and
should it seems be stated and e^pl^ined therein with, soflae .
degree of legal form and certainty (a). The inquisition, being
an office not of information but of entitling (ft), is bad if argu-
mentative, or if it be not direct and positive, so that no certain, .
traverse can be taken on it (c) ; as where the inquisition stated,,
that a manor was holden, &c. " as it appeareth tyf &c. (rf),"
and facts, not evidence, should be found (* ). The inquisition m&y, ,
however findaparticular estate, without tracing its origin, so that r
the precision of a plea is not necessary in these cases (/* ). And
on the rule utile per inutile non vitiatur, if the necessary facts be,
properly stated, the finding of a mere matter of law, may be ,
rejected as surplusage (g). As the inquisition is engrafted pn, -
and becomes part of the record, it may for defects of this na-
ture on the face of it, be demurred to, or set aside on motion)
to the Court. Where a part of the debt pn which the inqui-,
sition is founded is invalid, the inquisition may be set aside, .
pro tanto only (k). And the quashing an inquisition will j*pt
it seemspreclude the Crown from taking an inquisition. «.»,',
new writ of extent of the teste of that quashed (?*). , ,t ,

With respect to the nature of the debts to be found under;r ,
the inquisition, the general criterion seems to be whether^ e^
demand is of such a nature that an action might be main^aine^ y
against the debtor, were the debt due to a subject (&).. . t j

It being now held that an action is sustainable for tnpnies;VJ
which lie in account, and though there be complicated 91:05s,,
accounts (/), it seems that such monies may be found, as debts
under the inquisition. So that the antient Crown proceeding
by a distringas ad computandumy on the finding of the jury, is
disused (m).

(a) West, ch. 5. 3 Price, 269. (g) 2 Manning 335. " Com. Dig:' "

(*) See ante, this oh. Pleader, S. 23. °f! "

<*) See 3 Price, 269, 274. (A) 1 Anstr. 192. Hugh**, l«*i • ' »*

(</) 13 Co. 72. Inquisition set aside (») 3 Price, 464. A new writ necet*

for not saying in what county taken; sary, if former returned. Ibid* &€&* i. •;»•

for saying dieersa messuagia, without ■ {k) 2 Manning. 525, <»• " ,:> {•

naming them; for not stating in what (i) See 5 Taunton, 43 U. ■ , . nl

county lands lie. Jones 1£R Memortn* (m) 2 Manning, P*. 5^r5^0xA^h)'

4a, ft. Inptkitb* West, 26, 33. Whether the defendant

(c) 3 Price, 269* ■• can have credit given bjnj depend* n*

(/) 2 Manning, 535, notea(c) and the right to set off against ^.Qrown. ,

Was to whi«"b scp pojtf- ch» 1 $, s. 3. div.' .7. **

', Vfitk

270 Extents. [Ch.XlLPt.LS6c.f.'

With respect to a receiver of the King's money, the rights
of die Crown are in some respects of a More peculiar nature.*
The general rale is, that if a man receive the King's money '
(as a collector of taxes, &c), knowing it to be so, he may be*
treated as an accountant or debtor to the King, though he re-
ceived the money borid fide without any* or under an insuffi-
cient, appointment from the Crown J otherwise if be do not
know it to be the King's money (a).

The leaning is agfrinst constructive receipts of the King'*
money $ therefore where A. being the receiver of the KingV
money, drew a bill on B. payable to the excise, expressing that'
it was the King's money, and remitted to B.* who accepted the
bify an indiscriminate Mass of bills and cash, not to answer the
bill in question in particular, but upon a general running ac-:
count between A. and B. it was determined that B. could not
be considered a receiver of the specific mofeey of the King (b)l

In genera}, debts due from a receiver of the King's money,
are on the footing of simple contract debts Only, arid ate hot
records ; but in the case of collectors of taxes, debts due from
them are, as before observed (c), sometimes to be considered as*

of record.*

In cases where bonds, bills of exchange 6r promissory notes,
have been given to the Crown or its agents, it is frequently a
most important matter of investigation whether ot not either
of the parties to such instruments can be considered a receiver
of the specific money of the King, for the Crown never relink
qtdshes its claims on such receiver, and may issue ah extent
against him before the bill or note (and it seems before tt
bond(rf), whether given immediately to the Crown or not) has1
become due (*). This claim on the actual receiver of its?
money is however peculiar, and where the Crown holds bonds,
bills or notes against parties who cannot be considered re-
1 ceivers of the specific money of the Crown, it is clear that sueh
parties are not liable to proceedings by extent, &c till the
instrument be due {/). And in a late case (g) it was held that

• («) 11 Ob. 22, a. Cro. £1. 545. 1 (4) West, 45, 6 ; £71.

Leon. 32. Lane, 23. Biogbam on Ex- (<?) See Bebb's Caie, by Hughe*; aa&

ccutibns, 206, fee. Star. 976. West, c. 6. 3 Price, 75.

(*) BebbXCase, reported by' Hughes. (/) See Ibid.

(c) Attta, 226. (g) 1 Wight*. 32. )

-6 a plea

Cb.XII.PU.Sec.il.] Extents. 271

d plea to an extent in aid, stating that the defendant tad
accepted a bill drawn upon him by the original debtor, and
*hich did not become due till the day after the inquisition was
taken, is good, although the defendant had refused payment,
and the original debtor to the Crown had been obliged to take5
it tip. It Would be rank injustice to permit the Crown by * .
prerogative anticipation of the forfeiture of a bond, or maturity
of ah acceptance, or note, to fall suddenly on a party, whty
having no public money in his hands, had no reason to expect
summary proceedings, and who naturally deferred providing
funds to answer demands then only in abeyance, till the time
for payment arrived. Where the receiver is the drawer op
acceptor of a bill which is not due, the extent is against hifi*
in his character of receiver, and not of drawer or acceptor.

As an unsettled balance between partners will n6t support
ah action by one against the other, such an interest cannot
be seised as a debt, or returned under an inquisition to find
debts (<x).

If the Crown be dissatisfied with the finding of the jury, ad
to the defendant's prttperty in the goods seised under the ex*
tent, a thelitis inquirendum or further inquiry, under the sated
commission, may be issued (ft).

• » ^CK^fc^MHgjy f •

SECT. IL

Of the Scire Facias to justify the issuing of the Extent in chief.

TfifE general rule is, that an Extent being process of exeo*-
tioii, caifaiot issue without a Scire facias (founded on the inqui-
sition which renders the debt a debt of record), to bring the
defendant into Court and afford him an opportunity, of pleading
any defence he may have. And the Crown has no election in
thi4 respect, s6 that unless in case of insolvency, justifying an
immediate extent, a scire facias is absolutely necessary; and
tohere the defendant becomes insolvent, pending the proceeding
f>y scire facial it is usual to abandon the extent and resort to
a scire facias (c). This, and not the revival of the suit, is the

(«) 2 Manning, 527, 548. (<?) 3 Price, R. 892, *9*,*

\b) 2 Ves. 55$, S Rep. 148. Ante, 258, ;

^ ground

27*

Extents. [ChXII, Pt.L S«c.IL

ground on which a scire facias is in general necessary, previous,
to the issuing of extents. As no time runs against the King, .
a scire facias is, generally speaking, unnecessary to revive
proceedings at his Majesty's suit (a). When bonds fortlie
peirfbrmance of covenants are assigned to the King, a ;cjrt„
facias is necessary as the first process (6). There is an excep-,
tion tinder the statute S3 Hen. 8. as we have already seen* if
the debt be in danger of being lost and that fact be verified by1
affidavit In stich case an immediate extent, which is in the
nature not of an action but of an execution, may be issued ;
but if no such affidavit can be made, a scire facias must be
issued, the Crown debt being of record either as a judgment
or recognizance, or as a bond within the 83 Hen. 8. or as
any other specialty or a simple contract debt, recorded by
inquisition under a commission.

Xhe scire facias is under the seal of the Court of Exchequer
and signed by the King's Remembrancer, and tested by the
Lord Chief Baron. It recites the inquisition, or the bond, or
recognizance, &c. and commands the sheriff to warn the de-
fendant to appear before the Barons on a day certain, to shew
cause why the debt should not be levied. The scire facias,
though it may be sued out in vacation, must be tested in term.
And therefore a scire facias cannot be sued out in vacation, on
an inquisition taken under an extent which has been sued out, and
is consequently tested in that vacation ; because as the scire
facias, if sued out in vacation, must be tested as of the antece-
dent term, and must recite the inquisition in such case as th$
foundation of it, it would appear in such case that the scire
facias was sued out before the inquisition on which it was
founded, was taken. And the Court quashed such a scivc
facias on motion (i), and ruled that the objection could not be
got rid of by a special memorandum upon the record, shewing
the day on which the scire facias was really issued.

If the sheriff warn the defendant, he returns scire feci (d)«
If he do not warn him, he returns nihil (e\ in which last case
a second scire facias issues. On the return of scire feci or of
two nihilsj a four-day rule is given on the writ for the defend-*

(«) * Salk. 603. 1 Price, 295.
(r) 3 Price, R, 2S8.

(<0 Tremame, 609. West, 317.
(*} Trenail*, 6C9.

ant

K%.Xli$LT.Se£lfLJ Extents. 27S

v. * •• '. .; x • 4 ■< !" : »"•> 4

tot to appear and plead thereto, pr an extent to js$ue. If )t
the defendant appear, then another .four-day rule is given rt
Tor him to plead, or an extent to issue; |>ut if the defendai$,
Ho not appear on tte first rule, or &ppe*tring does not plead oif
thi second rule, process of extent issues without any judgment ,
on ike scire facias* But Judgments Jiave been entered up foj
the &ng; on the defendant's default in .not appearing, or iu
not pleading after appearance (a). And it is an indulgence ia
the court, that they do not enter up judgment; for if ^judge-
ment were entered, then the Court would be concluded, tAotjgb
perliaps the defendant had no notice of the debt [b\ Where
the scire facia* is returnable on the last day of term, a rule may
De ijiveh to appear oy the sealing day aftqr such term ; and, irj. *
default thereof, proceedings may be had as wherfe there are .
days in term for giving sufch rules (c). ^

The defendant may obtain six weeks9 further tune to plead
Slier tfee expiration of the four days, on amotion of course oa .
the* signature of counsel ; and may, on affidavit of special cir-
cumstances, obtain further time after the expiration of the six
weeks, by motion in court, on affidavit of special circum-
stances (</)•

SEC*. III.
Form, Teste, Issuing, dhd Rtti*% $d.
Of Extents in a

Trfte Extent, after rafting tli'e bond, or the finding of the
simple contract debt by the inquisition, taken by virtue of the
cottfrttfedibtiers, directs the sTieriff Ce) to omit not, See., but to *
entel;, ftc., and take the defendant, and to inquire, on the oaths of
good aftd lawful men, &6. what lands and tenements, and of what .
yetilty vaJUe^, the said defendant now hath, (if the extent be on
a siiftgJIe' Cohtracf debt,) or had (if the extent be on a bond) on

. (e) Pftriter, 94. Gilbert's Exch. 169. (•) It is directed to the coroners, or

West, 318. in Loodoo, to the lord mayo*, #V»*

(4) Gilbert's ExcJk 17a . tberiff be ibe-exteadee, $ MeAnbtv

(e) West, 318. 531.

t the

(a*) Ibid.

274 Extents. £OuXJI. ptl. Sec. IIL

the day of , (the date of the bond before recited,) or at Jfny

time since ; and what goods and chattels) and of what sorts and
prices, and what debts, credits, specialties, and sums of money,
the said defendant, or any person or persons to his use, or in
trust for him, hath in his bailiwick, and to appraise and extend
all and singular the said goods and chattels, lands and tene-
ments, &c. and to take and seize the same into the King's
hands (a).

It then directs the sheriff to summon witnesses, and to re-
turn the writ. Then follows a proviso, that the sheriff should
not sell the goods and chattels till he should be otherwise com*
manded ; and it concludes (if on a simple contract), " by the
said commission and inquisition, by warrant of Mr* Baron

, by the said Act of Parliament, made in the 33d

year of the reign of the late King Hen* 8. and by the Bar-
rens (a)."

If the extent be on a bond, it concludes, " by the writing
obligatory aforesaid, by the aforesaid Act of Parliament, &c.
by warrant of Mr. Baron , and. by. the Barons."

The extent is tested by the Chief Baron, signed by the
King's Remembrancer, and sealed with the Exchequer seal (&).

If the extent be on a bond, it is not necessary (whatever
may be the decision with respect to the question of issuing an
extent against the obligor, in a bond to the Crown, before the
bond be payable,) to set out any breach of the condition of the
bond in the extent It is sufficient in the extent, as it is in a
declaration, or scufa^ to set out the penal part of the bond,
and the defendant must shew the condition in his defence, and
all the forms are so (c). Where the debtor is already in cus-
tody, the extent may contain a clause of habeas carpus am
causd (d).

The writ of extent may be tested in vacation, for it issues out
of the equity side of the Exchequer, which is always open.; but
cannot be tested before, though it may be tested on the day of
the date of the Baron's fiat, which is the authority on which it
issues, the fiat being in effect an award of execution (e). It

(a) West, 55. pendix, 18.

(b) This is directed by statute 33 («f) Dyer, 197, a. 2 Manning, 517,
Hen. 8. 533.

• (e) Sea Tremaine, 637. Brown, 416. («> Stia* 749. Boob. 164. * Rep.

Tidd's Appendix. West, 57, and Ap- 171.

must

Ch XII. Pt.l. Mitt.] Extent*. 27$

ttiustBe returnable on a general return day in Term;'* and, at
Jeast \rheri the capias claiisfe is introduced, is irregular if a Term
intervene between the teste arid'the return (a). A mistake in
the teste may be rectified, It appears, \>y the Baron's fiat (8).
' The writ may be issued in vacatibn, and before the commis-
sion, -tttieih necessary is returnable; though not, it seems,
before it is actual/ returned and filed {c).

Any number of extents may issue into different counties at
the same time. Before or after the return of the first extent,
any number of extents may issue with the same teste as die
first extent, t. e. of the date of the fiat If they issue before the
return of the first extent, they may issue as a matter of course -r
if they do not issue till after the return of the first, extent, a mo-
lion must be made in Court, on affidavit, of special circum-
stances (rf), before they can issue. It seems, that the affidavit
ought at least to state, that the effects seized under the first
extent are insufficient to pay the debt.

If the teste be prior to the death of the defendant, the ex-
tent may, like any other execution (*), be issued against his
effects after his death, on the ground that the fiat, with refer-
ence to which the teste is generally, if not invariably, inserted,
binds his effects from the day on. which it is dated (J). And, as
wfe shall hereafter observe, even an action at the suit of the
Crown, does not abate by the death of the defendant (g).

If an extent be set aside for any irregularity, which does not
effect the fiat, a new extent, tested as of the date of the fiat,
may be issued (A). And from this it appears, that it is generally
useless for the defendants move to set aside an extent for any
formal defect in it subsequent to the fiat, since a new extent of
die same teste as the first may be issued, even if the defendant
succeed in setting the first aside. But this observation does
not apply to the case where a stranger moves to set aside
an extent* under which his property' has been improperly ta-
ken (f ).

(n) 2 Manning, 530. 7 Mod. 17. (/) West, 60.

(b) West, 58, 0>) 2Cro. 481. Port, 380. • #

(c) 3 Price, 288. (a) West, 60, note f. 3 Price, 269.
(rf) Parker, 35, 17G, 282. And tee Parker, 271, 35, 176, 282. As to in-

West, 59. 3 Price, 369. qnisition being set aside, post, ch. 13.

(e) See 1 Ld. Raym. 695. 2 Ibid. a. 2. Ante, this ch.

850. 7 T. R. 20. 1 B. and P. 571. (i) Weil, 60 and 333.
i T. R. 368.

T2 It

276

Extents. [Ch. XII. Pt I. Sec. III.

It appears to have been recently decided, that an extent may
be issued on an inquisition and fiat of eight years' old, qnd that
no new affidavit or fiat is ijequjsite* nor is any proceeding by
scire facias j or otherwise, necessary to revive such extent (a).
A** however, the CJourt erf Exchequer possess* a: diBcrtUonary
power in these cases, and «xtrem£ hardship must generally
ensue from this doctrine, it might perhaps have been as wejl
(o require at least a fresfi affidavit qf the continued insolvency
bFfhe defendant, and that an application should be made to
{he Court for leave to issue the extent by analogy to the case
of execution?, on old warrants of attorney (6). The ground of
the decisiont namely, that from the moment of the return of the
. inquisition, the debt becomes a debt of record, against whiclj
no time runs, and that where the King is a party a scire faciyn
is not necessary J*> revive the' record, is however indisputably
irueu though this application of it may perhaps be doubtfuL
Ana, as before observed, a scire facias seems necessary before
seizure, if a year and a day have elapsed after office found (c).
After that period, a presumption of payment might fairly be
made.

^\VTlere a joint debt has been found, the death of one of th*
* defendants, in the interval between the fiat and extent, does
not vitiate the proceedings (d).

'r Though the sheriff need not file his return in the King's Re?
' inembrahcer's office until the quarto die post of the return day,
'Ms power is determined on the actual return d&y (*)• For %
r fjfl$e return the. remedy is, by information in the Exc^eqn^r4 in
the name of the Attorney-General (/)•

'♦ •

v (a) 1 Price, R. 38(5.
(#) Ste Bunb. S3,
(c) Ante, this ch. tit. inquisition.
{d) I fifce, 395,
It) MaoniDg, Pr. l& Set further,

-f

?:<

»

as to the sherift' retort^ and of the Wri*,
of IdempHht* ttommu% *\*fr a wrong
person it Botes**} uader prtfogniiv*
ppcesjL *lh)<Ltt?. ,
(/) 9 Mannip^ Px. 632, 3,

»i

n • i ,

r • *

HECT.

Ch.XILPt.r.Sec.IV.J Extents. 277

... . . * - • ..k, r »{

SECT. IV.

«' .1 . ' i f - J

.Wm.Imsrieiia^ todbtamitt aid

fiat tfiereom

»

Th* rule is, that simple contract debts and specialties, not
included in the statute of Hen. 8. being rendered records by
the return of' the inquisition ; and bonds within that statute,
and certain other debts, being of themselves on the footing, of
records ; the Crown may (without issuing a scire facias) ott
.the wording of the statute S3 Hen. 8. c. 39. s. 55. issue an imme-
diateextent, on an affidavit of the debt, and that it is'in danger of
being lost, in consequence of the insolvency or needy circum-
stances of the debtor, and on the fiat of a Baron (a). The
immediate extent is founded on the presumption that die
Crown would be prejudiced by the delay attending the ordi-
nary proceeding by scire facias. . ^

We have already considered in what cases an extent may1>e
issued, especially with reference to the instances of a receiver
of the Crown debt, and of the demand being grounded oxva
bond or bill of exchange not yet due (b).

It seems originally to have been held, that on a tynjd or
recognizance to the King, for the performance of covenants,
of ether collateral things, a scire facias should' always ffrst
issue, and not an immediate efctent But it was afterwards
decided, and seems to be law, that on an affidavit of daqger,
and that the condition of the bond is broken, an immediate
extent may issue in every case, as well where the bond is for
the payment of a sum certain, as where it is for the perfbrm-
ttme of covenants or other collateral acts (d).

The commission to find' simple contract debts is always, as
before observed, returnable in term ; but the immediate extent
for a simple contract debt, which extent is founded on the
inkptbition taken under that commission, may, and constantly

(a) Ante, Extent* 'in general, and judgment for a penalty, when, and not
feet. 1 . Tbii w different from the before, an extent, as final process u

writ of extent, at a final process, or without any affidavit. 2 Manning, 517;

process of execution, after a judgment 521 , 526, n. g. 574.

In faVor of the Crown, either in a (a) Ante, a. 1.

tare facia or other action ; or on a (c) West, 47, 8.

dO€3,

2^8 Extent*. [Cb.Xl J; Pt. I. Sec.1V.

does, issue in vacation before the commission is returnable;
though it seems that the commission ought to be actually re-
turned into the office and filed before the extent issues (a). <
. The affidavit for the immediate extent must disclose the
nature and ground of the debt, and state its existence with
some degree of certainty and particularity. As observed by
Mr. West (6), " as to the statement of the debt, there seem*
no reason why the same rules that are. laid, down in civil actions,
in affidavits to hold to bail, should not be adopted in affidavits
for immediate extents ; as the latter process, by which body,
lands and goods are taken, and on which no bail is allowed,
would seem to require regulations at least as strict as the for-
mer ; under which the body only is taken and bail is allowed.
But the affidavits have not generally been so particular for
extents."

The statement of the debt in the commission and inquisition
taken thereupon, and in the affidavit for the immediate extent, .
is nearly the same ; except that the commission does not gene-
rally state the debt so fully ; in fact, the language of the com-
mission and inquisition is taken from the affidavit, which is .
the foundation of the whole proceeding (c).

The affidavit must also contain not only a general allegation
that the defendant is in insolvent circumstances and that the
debt is likely to be lost, but must also disclose the reason for ,
the deponent's thinking so, by alleging some fact or instance
of insolvency, from which the Court or a Baron may, in the
exercise of the discretion mentioned in the statute of Hen. 8.
form an opinion whether the debt really is in danger; as,
" that he has stopped payment," " has absconded," " a
docquet has been struck against him," " be has committed an
act of bankruptcy," or the like (d). For it would be unjust to
leave to the determination of a party interested, so compli-
cated a fact as insolvency. There are many creditors who
are but too willing to construe an ambiguous act into a sign of
instability, though consequences fatal to future credit and
prosperity are the probable result

An affidavit which merely stated that " the defendant was in

(/i) Ibid. 3 Price, $88. (<f) Wett, 52. What in irwohreney m

(A) West, 51. general, 1 M. and Sdw. 338, 350, 3.

<r) J bid. 51.

suspicious

Ch; XII. Ft. I. Sec.1V.] Extents. 279

siispitious circumstances, and that the debt was in danger of ,
being lost," was held insufficient (a): but it is sufficient to .
state, that " the 'defendant is likely to become insolvent, having
told deponent he could not pay the debt, nor give security,
and was selling off his effects in order to withdraw himself (6)."

As the Court will not permit the defendant to deny the in-
solvency by a counter affidavit, and he cannot traverse, or demur
to, the statement of insolvency in the affidavit, it being no part
of the record, it is very properly allowed him to apply to the
Court to set it aside, if it be defective (fc).

The affidavit may be sworn either before a Baron of the '
Exchequer in town, or a commissioner of the court in the .
country (d).

The authority for issuing the extent is the fiat of the Chan-
cellor of the Exchequer, or of one of the Barons of the Exche-
quer. This fiat may be obtained at any time, either in vacation
or in term, by application to the Chancellor of the Exchequer,
or one of the Barons. Nor is any motion in court necessary
for it now in term time. The commission and inquisition
thereupon (if the debt be by simple contract) and the affidavit, '
are taken to the Chancellor of the Exchequer, or the Baron,
after the execution of the commission, and he signs his name oil
the back of the commission (which, as before observed, is the
warrant for the issuing of the commission), and at the same
time signs the fiat for an extent at the foot of the affidavit;
which fiat runs thus : " 1st of January, 1816 (or whatever the
day may be). Upon reading this affidavit and also a commis-
sion and inquisition taken thereupon, whereby the above-named
C. D. is found indebted to his Majesty in the sum of £ — ,
let a writ or writs of immediate extent issue against the said
C. D. for the recovery thereof, with the usual proviso (<?).

' M G. WOOD."

If the debt to the Crown be by bond, the bond itself is
usually brought to the Baron, and then the fiat is, " Upon
reading this affidavit and the bond of the said C. D. let a writ
or writs, &c."

(a) Bunb. 300. (rf) Ibid. 54.

(*) Ibid. 134. (0 West, 49.

(c) West, 180.

If

If the bond, as is sometimes the case, according, tp the pre-
sefit practice, is not tak^en tp the Baron, &c, the fiat i^ " Upoi*
reading this affidavit let a writ or writs, &c. laV* .

SECT. V.

. [

Execution of Extent* in chief.

1. In general*

TBI mode of taking the inquisition nnder the commission} and
the proceedings thereon, have been already noticed.

The extent always contains the usual non omittas clause,
and the sheriff may enter into any liberty for the purpose of
efcecntirig' it (ft). He may also break open outer doors, hav-
ing1 previously signified his authority, and requested admit-
tance (e). But the process cannot, it Seems, be executed on a
Sunday (d).

« tJnder the writ of extent, the sheriff may take the
body, lands, and goods, &a of the defendant at once ; arid
where there are several defendants, the operation of the writ is
Several, and separate property of each respectively is liable.
3ior, as just observed, will the death of one of two defendants,
found tor be jointly indebted to the Crown, in the interval be*
tween the fiat and extent, prejudice the proceedings (e).
k The extent directs the sheriff to take all and singular the
goods and chattels, lands and tenements, debts, credits, speci-
alties, and sums of money, &c and the jurors in the inquisition
aay, thatthedefendant'hath not any other or more goods, chat-
tfcJ** lands and tenements, debts, credits, specialties, or sums of
Jnoney, m the sheriff's bailiwick, to the knowledge of the jurors,
which can be seized. It appears to be clear, that the sheriff
KMV, by virtue of the statute SS Hen. 8. c 39. which Y^sis in

(a) Ibid. Wejt, 50. Semb. that the sey or Jeney, ante, ch. 3. To w^om

pponVMtifa of the Bond may be dia- extent directed, ante, 273. *
pefcaed «ftb, 9 Price, 164. But tee (c) 5 Rep. 91, b. 93, a. Sb-T-Janea,

Weat, 50* note. 834. 4 Leon. 41, pi. 11. Gould*. 679.

• {*) ftro. PteiOgaUte, pi. 109, eitea pi. 114.

:+tt*nv Vk See 16 VI*. Abr. tit Pre- (rf) 89 Car. 2. c, 7.

nog • 0- *"• Extent do* nut fie to doern- (e) 1 Price, R. 3S|5. ante, 2*15.

the

CtvXH. PU.Sec.VO Extents. 2I

life Chtaot tj*4 rights of a party utider * wrifc of execution, pn a
abltele raerthant, or 'atatfar sta^te («), legally sebse all the
defendant^ goods, though tfotisitterably more tEsih IsixfiS^ient to
sajtsfy the debt ; but it doe* not appear that the sheriff could
be pfejudked by hit taking only sufficient to pay the de-
iowd* And under an extent m aid, it would be improper to
Ichjt more than the sum mentioned in tkejSat-, in pursuance of
the late Act* 57 Geo. 3, c 117*

By Magna Charta, 9 Hen. 9. c. &. it is provided, that the
Crown " shall not seize any land, nor rent, for any debt, as
long a& the chattel* of the debtor forthcoming suftce to pay tljfc
debt> and the debtor himself be ready to satisfy therefore*"
Notwithstanding Lord Coke's opinion (b)9 k seems, from the
words of the writ, and the return which is invariably made .to ife
and. from the statute 33 Hen. 8* c. 39. above alluded to,^th%t
the Crown may, since that statute, seize the defendant's landtj,
though his goods are sufficient to satisfy the debt(c), but't^ay
cannot in such case be sold (d). j

. The extent is ap execution, and the Crown is. not bound by
the statute of bail-bonds, 23 Hen. 6. c 9. and consequently tjjfc
defendant is not bailable. #

The sheriff may take any thing leviable on *^fierifaciq9ym$L
in many respects more extensive pqwers .are attached to ttje
writ of extent, as will be seen hereafter. The sheriff is onfy
to seize and not to sell the goods under the writ of extent^;
and the seizure of lands and. debts linger the extent, is effected
by the finding of the jury, and is njerely nominal. Actual sei-
zure is unnecessary (e). The inquest finding the office, y£$Ja,
the property in the Crown, and it immediately becomes b&z.
from liability to be distrained on for any cause {/). The prac-
tice is, for tfare sheriff to kjeep the .specialties seized, till cpl]&£.
upon to deliver them to the solicitor for the Crpwn (g). t *.

Extents in chief take place inter sef according tp ttajjff
teste (h). An extent . in chief, finding the saxne goocb found

(a). See ante, Bifents ia.generai Vin. (c> See 2 Manning, Pr. 5&<^<m, y* q

A^,ft. M^toaiife. Weft, 75, G. An4 (/> ;!«*,*",. QWWIi* *«•**>*.

»ee the former statutes, 51 Hen. 3. c. 4. Jenk. 112. pi. 18. Plowd.244*

and 28 EI. c. lfe. 2 Manning, Pr. 549. (g) West, 74. See peat, ,2*3, /title

(6) 2 Inst 19. Seizure of tano«, a« to mo^eoC^adief

(c)- See Gilbert, Hist Excheq. .127. la.ndson.insji^isitiovu. .,,*♦*'' i J.p

West, 74 to 79. 2 Manning, 549. (A) Parker, 281.
(d) Post, sect. 7,

. . 3 UpOH

282 • Extents. [ChJXIf.PtI.Sec.V.

upon* former extent in aid, shall be preferred and paid before
it (a). If an extent in aid issue, and good* be found and seiz-
ed, and upon a venditioni exponas, the sheriff return that he has
the money, and an extent in chief then comes, which also finds
the goods first extended, the King shall have the money (*. e.
on the extent in chief), but not if die money had been delivered
over (6). If goods are found on an extent in aid, and then an
extent in chief comes, on which goods are found, but not the
same that were found on the extent in aid, as to which no evi-
dence is offered, nor is it insisted that they should be found,
and then another extent in chief com^s, and the party prosecut-
ing it offers to find what was seized in aid, and is refused, the
Court will order a new extent of the like teste, as the second
extent in chief, and refuse it to the first extent in chief (c).
Where the same goods as are found under one extent are also
seized under a second, it should be mentioned in the* second
inquisition, that these goods are subject to the first extent
And where the two extents are executed at the same time, as
the sheriff may have some doubt about their priority, it would
seem to be the safest way to mention in the inquisition, under
each extent, that the goods are seized under the other ex-
tent (*£)•

2. What may be taken.
Body.

By the common law(e), and the statute of extents, the
Crown in all suits for debts due to it may take the body of its
debtor; who cannot as just observed be admitted to bail.
The capias clause is in almost every case inserted in the writ,
though it appears not to be customary to take the defendant(/).
If, however, he be arrested, he can obtain his discharge only
on a special application to the Court, or a baron in vacation,
when security is sometimes required (g).

' With respect to the King's interest in his debtor's body, he
was by the common law, and, under certain restrictions still
is, possessed of the power of protecting his debtor from the

(a) Parker, 4 SI. (#) 3 Rep. 12.

(*)1lbid, 28*. (/) 2 Price, R. 150. 3 Ibid. 94.

(c) Ibid. 28$. *' " (g ) 3 Ibid. $36.

(</) Wert, 118.

proceedings

Ch.XII.Pt4, 3*?, VO Extent*. Mir

• . ■

proceedings of other creditor*, till tjie Crown debt fee satis*
fied (a). This wu effected by a writ of protection, and an-
tiently.this prerogative was carried so far that the executor, of
the King's debtor could not take out probate or intermeddle
without the King's permission (£)• Great inconvenience* says
Lord Coke (<?), arose • out of these protections ; for to delay
other men of their suits the King's debts were the more slowly
paid: and therefore by the 25 Edw. 8. st 5. c 15. " Foras-.
much as our Lord the King hath made, before this time, pro-
tections .to divers people which were bounden to him in some
manner of debt; that they should not be impleaded of the
debts which they owed to other till they had made satisfaction
to our Lord the King of that which to him was due by them
by reason of his prerogative; and so during such protections
no man hath dared to implead such debtors : it is accorded
and assented, that notwithstanding such protections) the par-
ties which have action against their debtors shall be answered
in the King's Court by their debtors, and if judgment be there-
upon given for the plaintiff or demandant, the execution of the
same judgment shall be put in suspence (d\ till satisfaction be
made to the King of his debt And if the creditors, will un-
dertake for the King's debt, they shall be thereunto received,
and moreover shall have execution against their debtors of the
debt due to them; and also shall recover against them as much
as they shall pay to the King for them." So that since this
statute the Crown can only delay the execution, not the suit of
its subjects : and the statute only applies where a writ of pro*
taction is: actually granted (*)• Protections are now obsolete
though the power of the Crown to grant them remains en-
tire (/)• Consequently in the King* Cotton (g), the King
sent his writ out of Chancery to the justices of C. B. com*
manding them to surcease execution in a suit between subject
and subject, the defendant being his debtor till the debt should
be. satisfied; and this was considered so much a matter of
course, that the plaintiff asked no more of the Court than that
the cause should be kept on foot in Court by continuance on

(«) F. N. B. 28, B. Co. Lit. 131, b. Fitz. Abr. Execution, pi. 38, cited in

Oodb. 290. 2 Rol. R. S94. Rex o. Cotton, Parker, 123,

(6) 16 East, 261, 281. (t) Cm. Car. 389. ,'

(c) Co. LK.T3J, b. (/) Co. tit. 131, b. and note 206V

(<9 Thii was done in 41 Edw. 3. See (g) Parker, 123.

the

284 Extents. ([Ch.XII. Pf . I. Sec. V,

tfie roll in order tftat when the King's debt should be satisfied"
tBere should be an award of execution for him,

So in respect of a subject being engaged in the Kin£? serr
vice 6ut of die realm, the King may, by nis writ of prcft^c&nv
privilege such subject from all personal and many real quits-
for one year (a\ * ,' . ! .

It seems at the present day to be clear. that the subject may
have an interest in his debtor's body, smul et sepiel with, the
Crown (b) ; for, as observed by Lord Hobart, " the body, is
all ta all/* an^ the Crown cannot be prejudiced by the. sub-
jects having an interest in common wit^ him in the body of its*
debtor. This doctrine holds it should, seem though the partjr
be first taken by the Crown ($)* The Crown has however the
prerogative right of choosing the custody in which its prisoner
is to be kept; and no subject can without the consent of the
' Grown remove, the party from such custody for the purpose
of charging him. with a declaration, charging him in execu-
tion, or surrendering him in discharge of his bail, &c (rf)
"As the bankrupt (f) and insolvent laws do not bind the-
Crown, a bankrupt's. certificate and insolvent's discharge will
'not entitle the party to be released from confinement on an-
' extent. And it seems to have been held that a bankrupt may
be arrested for a Crown debt when under exajmi nation. qwto»
* d redeundo (jf). . j

Goods and Sums of Money.

. < IWgo<«U^*Affmmie#of^ite defe&dtat ate also to be seiaNT
. ft**©* the eiitei*.

••. via* eating bind* the defendant** goods, whatever the mature
: o&th* de)bt-matr bey only* tan* theJaw**d' of exfecitf<m,ibat4s

>«

, (a) Co, lit. ISO, 1. 3 Bl« Com* 989.
, ffi See. Cio. Or. 3*9, S9fc 9aatH
*ffc 29* Hob< 115. and the following
^'notes,' Vide riyeri 297. pi. 2*.
(cJ.IOid.. Jlut tee Godb. 290.
(4) 5 Taujft. 503.. and oases there
cited. * In this cate the defendant bar-
ing gbgn bag * the action end being in
custody of tbetherinprf lotion under
an extent of the Crown, the .Court of

••»

C. P. held, that they cooW not grant
bit b**V a habeas cofpas toybTwjgvwin*
op, and render biro Hi thejrfdb*b*rf*
to the fleet without the content of the
Crown. See further on thfs subject,
3 Manning, 533. In Qriarinnl Catet,
flic. Ohitty, Oim. law, »U,«I^
(f ) Bunb. 909. I At*. 969.,
(/) Bla. Rep, 1149; 1 Montagu*.
Bankrupt Laws, 66*.

in

<3i.XII. Pt.1. S«c.V,] ExtoUf* 885

in strictness the fiat fa) ; but as it is the sheriff's doty,. as ap-
pears from the Form or the tfnt, merely to take the property
the defendant had At the time the writ is tested, it is the inv*-
friable practice to teste the writ as of the date of the fiat, and
4t cannot b& tested heibre. No difficulties can therefore arise
ih this respect as to the teste and fiat, and the distinction
between them is nominal. The King is not named in, and
idnseqiientl v is hot bound by, the statute of frauds, 29 Car". SL
k. 8. which direct; {hat goods shall be hound only from the
-delivery of writi of execution to the sheriff (d).

The sheriff may seize all the defendants goods inh(sown
possession or in the hands of another as his trustee [c\ except
things necessary pro victu of himself and family: and except
also averia comae, if in the latter case there be other chat-
tels sufficient id). The King is not bound by a sale in market
overt(i); or by the custom of London for the pledgee to retaip
goods against the real owner (f).

The general rule is, that a stranger insisting that a seizure
under an extent is invalid, must claim a property in the jjoodg

token {g). ^ y ' ' ; -

It will be proper to consider the effect of aji extent: '1st,,

"' Where a stranger claims a special or other property in the

goods. 2dly, Where he claims an interest without a property.

First, in the case of a claim of a special property in the goods,

as contra-distinguished from the general property ih them, the

rule is, that if such qlaim arose prior to the fiat or teste of the

writ, the extent shall not operate. As if tne goods were bond

JUe and not fraudulently assigned in trust for cre$tor^ &c

though such assignment amount to an act of bankruptcy .-(A),

.., <p wejce p^wn^, demised* ft* to another, for a t**m eefetakv

so as to vest a special property in ibeat m th* pawnte joc*

-<.«.»

W 8 1te$. 1?f . 0flta Rtcheiq. 90. (/) Plowd. 243. "Bro, Prerog. 5. !#

Stm. 754. Warrant from Coflimitsfon- m-TWffeasar Hold defenefent's good*, the

e*s dtfTfcge*, Ibid; 90S. Inquisition should fadttfefbcttdgroiitd

^flftel Vwkjt, 105. *Ua*. Ab. process of withernam or m Wbftaifion

tWi K. GHfc. Exefeq. 90. in tfce nature df*tro?er OY^eflnftetyaiomt

r ■{<) W Rep. * Wm, TTHamitae;, Pr. 3N*/ 5. i MM^90v

(0)4 DM. At*, ft*. #. S. Gbn. tf>$8. -""- % v ** *' '

Dir. DM*, G< 3; I* Vmv'Afc m tit. (*) SeeflOBVcfcW. *?3. drWtf™

-»•** I. pi. ft ■ * • * < A) West. i¥5/ 1W; Sft'tt?4*!.

<#) 2 lost. 71dt - Mri'sriM/Sti; ' * *

bailee.

2S6 Extents. fChi'XIE. Ft. I. Sec.V.

bailee (a). It seems however that goods pawned before the
teste of the extent, may be taken as against the pawnee, on
satisfaction of the pledge (J), or taken and sold, subject to the
pawnee's right (c\

As however the Crown is not bound, by the bankrupt sta-
tutes not being named in them, and relations which are but
fictions of law, cannot bind the King (d\ the extent operates
on the defendant's goods, though a commission of bankrupt
lias issued against him, if the assignment of his effects be not
executed before the fiat or teste of the writ ; but the Crown
cannot take the effects if actually assigned before the fiat or
teste, and a provisional assignment is sufficient for this pur-
pose (e). If the assignment of the bankrupt's effects and the
teste of the extent be on the same day, the King's prerogative
shall prevail (f). But an extent issued out of term cannot be
ante-dated, so as to over-reach the assignment (g).

It has been asserted (A), that if husband and wife are joint
tenants of a term, demised to them during the coverture, and
the husband become indebted to the Crown, the King may
have execution of this term against the wife, after the hus-*
band's death, because the taking the lease was the husband's
act, and he had power of the term at the time of his death,
and the wife came to it without valuable consideration, and
qtwdammodo continued in of the interest of her husband*
Rolle however says be does not see how this doctrine can be
law ' entant que V execution ne relate (t) ;' and it seems to be
unfounded, if there be no fraud. On the death of the husband

(a) Bro.Abr.tit Barre, 121; Plowd. (g) Stra- 749. It it said the Crown

48Y. Pledges, 28 ; Trespass, 92. 1T.R. cannot prove under a commission. Ibid.

119. So the Crown or Its gmntte- takes 752.

by forfeiture, sabject to previous bona (A) In Sir O. Fleetwood's Case, 8

fide charges, though voluntary. 2 Vez, Rep. 171 ; and the authority cited for

116. the position is 50 Ass. pL 5. See 1

(4) Bro. Ab. tit Pledges, pi. 28, 31. Wightw. 37.

(c) 8 East, 467. W 2 Rol. Ab. 137, Pierog. F. pt 5W

(4f) H«b. 339. And see 16 Vin. Ab. 521. I* a party

(e) Paiter, 126. 7 Vin. Ab. 104. purchase or coorey lands to himself and

1 Atk. 95. 4 Term ft. 41 1. Strs. 749, bis wife (for her joioture),and tohbheirs,

979. 1 East, 363. 5 Ves. Jan. 297. and then becomes indebted to the King,

14 Vez. 87. l Montag. Bkpt. Laws, and dies so, no execution gating issued

663. 16 fast, 279. during his life, the land cannot be

(/) 2 Vez. 495. Stra. 749. Parker, charged during the life of his wife. Ibid.

126. Bunb.33 156. Post, 300.

6 the

Ch. XII. PL I; Sec.y .1 Extenb. 287

the chtttle real vests, by operation of law, absolutely In the
wife, as survivor, he having omitted to dispose of it during her
life (a) ; and there is no principle of law in favour of a relation
back further than the teste of the writ And dower is free
from the claims of the Crown against the deceased hus*
band (»).

Under an extent against one partner, the Crown may seize
partnership goods, but it can sell only the interest of the
partner against whom the extent issues ; which is his share of
the surplus, afterpayment of the partnership debts (c).

The invariable form of the writ shews, that under, an extent
against several, the separate goods of each may be taken.

Secondly, where a stranger claims an interest, without a pro-
perty in the goods, the general rule seems to be, that though
such interest arose prior to the fiat or teste of the writ, the
prerogative shall prevail. Therefore where goods are dis-
trained> but not sold, before the fiat or teste, they may be
taken, because till the sale the property in them remains in
the defendant (d). Nor is the landlord in such case entitled
to a year's rent, under the statute 8 Ann, c 14 (*). So the
effects of a bankrupt are subject to the extent, if not actually
assigned before the fiat or teste, though the creditors have an
interest therein (/). But goods holden by the defendant in
his representative capacity of executor or administrator, cannot'
be taken (g). And if the defendant be a member of a corpo-
ration which has been fined, the goods of which he is possessed
in jure proprio, shall not be seized for the fine (A). Nor is an
executor or administrator liable, even at the suit of the Crown,
for the testator's or intestate's debts, if there be no assets (i ).

It seems that the cattle of a stranger, levant and couchant, oh
the debtor's property, cannot be taken on an extent (£), though
they may be on a levari facias. It is even said that if the King's

debtor suffer A. to manure his land, the goods of A. may be

«

(a) Bac. Ab. Baron and Feme, C. 2. (J) Ante, 286.

D. Co. lit. 351. • note. (g) Rol. Ab. Prerogative, 159, L 49.

(*) Co. Ut. 31, a. post, 300. 2 Ibid. 806. Com. Dig;. Debt, G. 7.

(c) 1 Wight*. 50. See 3 Bo*, and 4 Term R. 628. 17 Vex. 152. .

P. 288, 9. See ante, ch. 11. a, 3. (A) 2 RoL Ab. 159.

(<0 Parker, 112, 121. 4 T. R. 211. (i) 33 H. 8.c. 39. u 77.

16 East, 279. . (*) 2 Rol. Ab. 159. 16 Viq. Ab, 51*.

(e) See feet 8. So on exlfgtti in aid. 1 U. Rajrm. 307. 12 Mod. 178.

* Price, 17. .

, seized

*•« Extent*. £db. X tl. Pt. I. Sec. V.

sefead mi a toari by tJie King for the debt(tf). But fa rite case
of tenants in common, the cattle of one going upon the land
cannot be taken for *he Crowti debt due from the other (*).

With reqfect to the powers of the extent, m case the de^
Jendafcf s goods have been already taken or seized ih execution
on * fieri facias, &c. at the suit of a subject, the statute 83 Hen,
•• «. S*. 6. 74. enacts** that " If any suit be commenced or
taken, or any process be hereafter Awarded for the ting, fo*
ike recovery of any of the King's debts, that theh the sfcriie
suit and process shall be preferred before the suit of any
person or persons: and that Our said Sovereign Lord, his
heirs and successors, shall htfte first exeetttion against any
defendant or defendants* of aftd for his said debts, before any
Other person or persons, so always that the King's said suit bi
taken and cdmmeneed, or proeess awarded, for the sttid debt
at the suit of our said Stftefelgn Lord the King, his heirs 6^
successors, before judgment given for* the said dthefr person ot
persons.*'

The general common \tm *uie is, that even a prior seiztite s
under a fieri /kcias, dees rftff operate or render the ^xeoutidti
completer against Brt extthtj though * sate previoirs to the fcrf
or taste of the extent!, witl secure the subjects right (c). Kot
withstanding the tfbov* se<*fc>*, it ft <ikar therefore ftat if ttai
Crown suit be ooMMkieneed of the flat for the extetii be mad^J
before judgment be ghteft for the subject, the Ctowtt pr6-
oeaa shall be preferred (4). And the *orfl * d&t,'' ih &e
above section, includes a * penalty* due to the Crowfi.
Therefore i* Butk* v. Better^, it #a* detfded ttotf £tt*£s$
sued oat by the (Drown dgafcst a defendant to recover real-
ties, npo* which judgment for <he Gro*b is rfAteri^ds 6b-
tained, entities die King's exttutfai to have priority Withiii
the stattM, btfotief the execdtkfei of a1 subject, Whose execuliori
htt«t issued aiftt been commenced on a judgtfteht recovered
against the same defendant prior to the King's judgment, but
subsequent to the commencement of the King's process : the
King's writ- of execution having been delivered to the sheriff

(a)Upe,9U .It Via. Ab. 519, tit. 125. Gift. EfcclKqf. 90. I*
Frerogatire, fc 064, 5.

0> tf>»i. a UMi <*!*.. 4»V. Unl (<0 1 Fast, 338.

(c) Dyrr, 6*7, b. pargra.. Parker,

before

•» »

Ch.XlI. h'J.'Sec.^.] Extents. 289'

before the actual 'sate of (he defendant's goods, under tfi*
plaintiffs exefcution. . . . t v

But since the statute, it has become a dubious qvies&m
whither of flbf the'Crowrt suit is to lie preferred where tbe:
feubjec^rfjutlgnierrt Is prior to the commencement of the Cjpprji.,
suit, or the* award of the Crown process^ and where the sub-
ject? s' wtW S$ afeo delivered to the sheriff before the extent^
The Courts 6t Common Pleas (a) and King's Bench (6) haw
un&tiimbtisty decided in favor of the subject on this point, but :
the Court of Exchequer4 have subsequently and recently held,
otherwise (c). As the authorities are contradictory, the svb* ,
ject demands investigation.

That

(a) Uppan e. Summer, 8 JUa* Rep.

1394.

(b) Rorke ©. Dayrell, 4 Term Rep.
409.

(c) The Kin? v. Allmit, cited (6 East,
°/fc, note*. Seethe argument id Thori-
te* a MHJa, ibid. 864. cwaatoied fat to*
Kbp •• Slope* and All**, fedtesjaer*
Saturday, November 14, 1818, TIm
following ia tip report of that caae in
tbe timet newspaper. " The Attorney.
General on a former day obtained a
rale calling on the sheriff to pay over
to the Crown a certain sum of money
which be bad in hit hands, the pro-
perty of the defendants, in satisfaction
of a debt da* ftixn them to Kit Ma-

jeaty. \ .

",Sft William Owen, on ton part of
Messrs, Moriands, bankers, opposed
the motion. It appeared that Messrs.
Morlandt had obtained a verdict against
the defoAOaiKt, and had entered np
jodfmeni, ened pot eseeecioo* end
placed it in tbe hands of the sherift
who had levied under it. Three days
trfter the levy Wat made, and berorethe
goods were sold, his Majesty came in
with his writ of ekteut The sheriff
however, on the part of Messrs. Mart
lands, retained the money wbtfia}. was.
the psoceeds of the goods, on the ground

that they baviaf obtained their jv**>
ment and execution before hisftaajeaty's
writ came down, tbe Crown was ousted. .

The Attorney-General, on tbe other
aide, contended, that the taking of the '
good* by the sheriff did not at altdrrest
Siopar and Allen of their property ia
them. They were still their goods, and
only in the legal custody or possession
of the sheriff, for a purpose to be after*
wards carried into effect, namely, for *
tale, in order that the proceed* msgbt ;
be applied, to payment of a debt doe ;
from the defendant to Messrs. Mor-
landt. Tike King's writ came down
before * that - circumstance took place ;
and therefore the rule applied la&dawfc
in the King and AQout, ,in which caae.
the judges held, that up to the change
of propei ty actually taking place, the
KmVswfit tlfould have precedence' or* *
all others.- Had tbe tale taken ptac»
only one minute before the, Kmg^a; wife .
arrived, he was ready to acknowledge.^
the King Would have been ousted j but
a* it was; be contended his motion was* *
wall founded. * ' .-* •• •*

u The Court after hearing the argu-
ment, decided that the Atiorttey'Ge*
neral was entitled to his rule; Thee*** "*
ef <th* Kifar end AAlfcrat was decide*
fourteen years ago; theCbwitbwd'edhSlf *
on It ever tinttij tod until it was to* ,

peached,

290 Extents. [Ch.XIL Pt.L Sec.V.

That the Crown is entitled at common law to a preference,
till the subject's execution is complete, is not denied* The
general common law doctrine, that the prerogative must pre-
vail where it stands in competition with a subject's rights,
arising concurrently with those of the Crown, and that conse-
quently the prior part of the 74th section is merely declaratory
of the old common law, is also admitted. But it is contended
on the part of the subject, that the statute confers various be-
nefits and advantages to the Crown, as by putting bonds to the
King on the footing of statutes staple, by giving to the King
the prerogative execution by extent, &c. and therefore he can
only avail himself of it, "by taking it subject to the express and
clear exception in favor of the subject, in case his judgment
be obtained before the King's suit be commenced or his process
awarded : and that the latter part of the clause is restrictive
and imposes a condition on the prerogative. But the chief
ground of Lord Kenyon's opinion in Rorke v. Dayrell, namely,
that the property of the goods was altered by the delivery of
the writ to the Sheriff, is now given up, it being admitted
that the property of the goods is in the defendant till sale (a).

On the other hand, the prior claim of the Crown is contend-
ed for principally on these grounds :

First, It is urged, that the case fells within the general com-
mon law principle, exemplified in the case of a distress for the
same goods, or the bankruptcy of the defendant, that if the
King's execution bear teste before the property in the goods is
actually altered, they are bound by the extent, and that until
the sale under a Jieri facias the property remains, as is admit-
ted on the other side, in the defendant. That however the
case may be between subject and subject, a superior obligation,
by force of the Crown process, may intervene before a sale, and
overpower it.

To obviate the construction put on the 74th section, in fa-
vor of the subject, it is contended on the part of the Crown,
that if the words " so that the King's suit or process be before
the subject's judgment,'9 be literally construed, the Crown

peached, by some motion for its fecon- jmy over the money, was made abso-

sideration, the Court would not depart lute."

from she rule there Iqid down. (a) 16 East, 967, 3$g#
" The rule, calling on the sheriff to

would

Ch.XJL Pt.LSec.VO Extents. 291

would be placed in a worse condition than a subject, as the
subject's prior judgment would prevail against the extent*
though the execution on the judgment were after the extent*
That the priority of the judgment never was a criterion by
which the preference of execution could be determined. That
express words are necessary to abridge or take away a prero-
gative, and if any other construction can be reasonably applied
to the words of the 74th section, it should be adopted* That
the history of this branch, of the prerogative will prove that the
statute was meant to give the subject a benefit, and restrain the
Crown in a distinct and irrelevant case* " By the ancient
prerogative of the Crown (it is ingeniously argued {a) ), as it
stood at common law, the King was to be paid first, and was
entitled to stay the suit of other. creditors against the King's
debtor, until the King's debt was paid, and the means by
which that was effected was, to grant a protection to the
debtor (6). The first alteration that was made by statute in the
King's prerogative was by 25 Edw. 3. stat 5. c 19. which
narrowed the prerogative, by allowing the suits of othqc cre-
ditors to proceed to judgment, notwithstanding such protec-
tions ; but the execution was to be suspended, unless the cre-
ditor should undertake for the King's debt. The next altera-
tion was by the statute now under discussion, 33 Hen. 8.,
which is very obscurely worded; for it would appear to one
not conversant with the law, as it then stood, from a view of
this clause of the statute, as if it gave to the King something
which he had not before, but at the same time gave it with
qualifications ; whereas, it is quite clear, from the above consi-
derations, that although worded in the form of a gift, it gives
nothing to the Crown, nor enables it to do any thing which it
might not have done before. But it imposes conditions, and,
therefore, must be considered as a restraining clause*. Now
the rule is, that the prerogative of the Crown shall not fre taken
away, except by clear and unambiguous words. According to
that rule, the statute must be taken to have worked this re-
straint, and no farther, viz. that the King shall not prevent the
subject from taking out execution upon a judgment obtained
against the King's debtor; unless, before the time when the

(a) 16 But, 260, &c. S81, fc (*) Sec ft*. Abr. Statute, L 4.

u 2 subject

292

Extents. [CiuXIL Ft-I. Sec. V.

subject shall have obtained such judgment, the King shall have
commenced his suit, or instituted process for the recovery of
his debt. This will be an abridgment of the prerogative, (for
under 25 Edw. 3. it has been shewn, that the King might have
prevented the subject's execution, although the King's suit was
not commenced before the subject had obtained judgment,) and
will satisfy the words of the statute, and also conform to all the
authorities prior to Uppora v» Sumner. The words of the sta».
tute cannot possibly be taken in their literal sense; for then, if
the subject's judgment were first he would have precedence, al-
though his execution were last, which is not the case, even
between subject and subject That sense, therefore, must pre-
vail, which the words will best admit o£ upon a reference to
the law as it stood before the act The substance of the en-
actment is this, that the King's suit and process (which is
intended of mesne process), and the King's execution, are to be
preferred to that of the subject, which is so far the same as at
common law ; but he is only to have first execution, L «• a right
to prevent the subject from issuing execution until the Kings.
debt be satisfied in the case there provided for. But the
statute was never intended to be applied to concurrent exe-
cutions."

It may be observed upon this most important question, that
this mode of construing the statute seems reasonable, and it does
not appear that any positive objection to this explanation of it
has been offered. The leaning and construction should, it
seems, be rather in favor of the Crown, in the case of an en-
actment apparently abridging its prerogatives; and in order to
discover die scope and meaning of a statute, especially if it be
ambiguous, it is perfectly consistent with legal principles to
regard the common law as it existed at the period when the
act was passed (a). And it appears on the whole highly pro-
bable that the question, if it arose again, would be finally set-
tled, in conformity with the very recent decision in the Exche-
quer, in favor of the Crown (b).

If the facts are returned specially by the jury, which appears
to be the usual and most advisable course, thev must be stated

(a) See Bee. Abr. Statute, 1 . 4.
(*) Ante, 289.

See however Mr. West's observations,
West oo Extents, 107 to 1 12.

and

i

Cfi.XIL Ft L Sec. V.] J&rfenfc. S9S

and found with a precision and Certainty which will enable die
parties to traverse, and take a clear issue on them (a).

The Court possesses, in many instances, a discretionary pow-
er to protect its officers, when, without any fault on their parts,
they are placed in a dilemma in consequence of any doubtful
point of law. If, therefore, the sheriff have ajkri facias and
an extent in his hands against the same party, and the opera*
tion of each be not clear, he should not proceed with the for-
mer, unless die plaintiff will indemnify him ; and if the plaintiff
refuse to do so, the Court will enlarge the time for making
his return to the Jkri facias, on an affidavit of the circum-
stances (ft).

By the 28 Geo. S. c 37. s. 21. the Crown has a lien on goods
and articles used in trades subject to die excise (c). And by
the 43 Geo. 3. c 99. s. 37. the goods of persons assessed to
and owing the taxes therein mentioned, cannot be taken in ex*
ecution, or assigned, &c (though they may be seized for rent),
unless the phdndff in the execution, or the assignee, shall,' be*
fore the sale or removal of the goods, pay the duties due for the
year.

Lands.

The Crown has at common law, and by the statute 33 H. 8*
c. 39. s. 55. a right to take in execution the lands of its debtor
or accountant (<?). As already observed (e)9 it seems that the
sheriff may seize the defendant's lands under the extent, though
his goods be sufficient to satisfy the debt

With respect to the time from which the lands of the debtor
are bound by the Crown debt, the general criterion and rule
at common law seems to be, that the lien or claim obtains only
from the time when the debt becomes of record, and is thereby
presumed to be of public notoriety.

Debts of record always bound the land from the date of the
record (/). The statute S3 H. 8. (g) puts bonds taken in the
form thereby prescribed on the footing of statutes staple, and
consequendy such bonds so taken, bind the obligor's lands by

(a) Wert on Extents, 114. note e. (rf) 3 Rep. 19. 4 Taunt 334.

(6) 7 T. R. 174. 1 Taunt, ISO. 16 (#) Ante, 281.

East, 263. (/) Gilb. Excheq. 88.

(0 See Doogt. 416. 6T. R. 437; (g) c 39. s. 50.
Deciskms on this statute.

virtue

294 Extents. [Ch. XII. Ft I. Sec/V.

virtue of that statute, from the time they are executed («)*
But other bonds and specialties only bind the party's lands, as
at common law, from the time they become of record, under
the inquisition on a commission. The same doctrine obtained
at common law, and in general still holds with respect to.
simple contract debts (4). However, even at common law, debts
due from certain known public officers and accountants to the
Crown, though not of record, bound the debtor's lands from
the time they accrued due (c). And the statute 1 S Eliz. c. 4.
ar. 1. extends this common law exception, by providing that
debts due from the officers, collectors and receivers, &c men-
tioned therein, shall bind their lands from the time when they
entered into the offices.

By that statute u for the better security of the Queen's Ma-
jesty, her heirs and successors, against such as shall have the
receipt and charge of the money and treasure of her Highness,
her heirs and successors, it is declared and enacted, that all
lands, tenements, profits, commodities and hereditaments*
which any treasurer or receiver, in or belonging to any of the
Queen's Majesty's Courts of the Exchequer, Wards and Live-
ries, or duchy of Lancaster, Treasurer of the Chamber,
Cofferer of the Household to the Queen's Majesty, her heirs
or successors, Treasurer for the Wars, Treasurer of any fort,
town or castle, where any garrison is or shall be kept, Trea-
surer of the Admiralty or Navy, Treasurer, under Treasurer,
or other person accomptable to the Queen's Majesty, her heirs
or successors, for any office or charge, of or within the Mint,
Treasurer or Receiver of any sums of money imprest, or other-
wise, for the use of the Queen's Majesty, her heirs or succes-
sors, or for provisions of victual, or for fortifications, buildings,
or works, or for any other provisions to be used in any of the
offices of the Queen's Majesty's ordnance and artillery,
armoury, wardrobe, tents and pavilions, or revels, customer,
collector, farmer of customs, subsidies, imposts or other duties
within any port of the realm, Collector of the tenths of the
clergy, Collector of any subsidy or fifteen, Receiver-General

(a) 8 Rep. 171. 2 Rol. Ab. 156, 7. Lane, 65.

The Kmg> execution on a bond assigned (A) 1 Wight*. 8*.

to him, relates only to the date of the (c) See the gases cited, 1 Wight*,

assignment. Lit. 124, 5. SaviJ. 11. 36, &c.

Of

Ch.Xll. Pt. I. Sec. V.J Extents. S95

of the revenues of any county or counties answerable in the
receipt of the Exchequer, or in the Court of Wards and
Liveries {a), or the duchy of Lancaster, Clerk of the Hamper,
now hath, or at' any time hereafter shall have, within the time
whilst he or they or any of them shall remain accountable,, shall
for the payment and satisfaction unto the Queen's Majesty,
her heirs and successors, of his or their arrearages, at any time
hereafter to be lawfully, according to the laws of this, realm,
adjudged and determined upon his or their account, (all his,
due and reasonable petitions being allowed) be liable to the
payment thereof, and be put and had in execution for the pay-
ment of such arrearages or debts to be so adjudged and
determined upon, any such Treasurer, Receiver, Teller, Cus-
tomer, Collector, Farmer, Officer or Accountant, as is before
named, in like and in as large and beneficial manner, to all
intents and purposes, as if the same Treasurer, Receiver,
Teller, Customer, Farmer or Collector, upon whom any such
arrearages or debts shall be so adjudged or determined, had
the day he became first officer or accountant stood bound by writing
obligatory, having the effect of a statute qfihe staple, to her Ma-
jesty, her heirs or successors, for the true answering and pay-
ment of the same arrearages or debts."

With respect therefore to debts due from the officers
enumerated in this statute, they bind the land (if incurred at
any time during the continuance of the office (b) ) from the
time of entering into the office (c), since the writing obligatory
having the effect of a statute staple, mentioned in the statute,
binds the landTrom the time it is entered into.

The enumeration of officers and receivers, &c. in the statute,
is, it will be observed, very general. The words " treasurer or
receiver of any sums of money imprest or otherwise," are par-
ticularly so, but they do not mean any person who gets the
King's mone^ into his hands. Being introduced in the enu-
meration of certain known public officers, they must be confined
to that class of persons ; and therefore where it appeared that
the party had received the King's money from the paymaster-
general of the forces, and not in any specific public character of

Xa) Court of Wards and Liveries (<?> 1 Wight*. 34. 3 Leon. 90, West*

taken away, 12 Car. 2. c. 24. s. 1. . 128, .9.

(6) 10 Rep. 55. Wert. 128.

his

296 . Efitenb* [OuXII. PU. SeiuV.

his own, he was held not to be within £te joemingof the statwto,
and consequently that a bond jide purchaser without notice,
after he received the money and before the inquisition, was
protected (a). The general, rule, therefore, clearly is, that
debts due from persons not within the enumeration in the
statute of Elizabeth, remain as at common law* It would be
a serious hardship on purchasers, if an individual holding no
office known to the public, to be an accountable office,
might by casually receiving part of the King's treasure
bind his land in the hands of a bond jide vendee without
notice*

Mr. West observes (&), that simple contract debts are re*
corded by the inquisition under the commission. But whether
they date of record from the finding of the inquisition or from
the actual return of it into the Exchequer (whether before or
after die day appointed for the return), or from the appointed
return day, if then returned, does not seem to be decided.**
It appears that the debt would be of record from the time when
the inquisition is returned and filed.

The £rown may take not only the legal estate, but estates,
held by another in trust for the defendant, or an equity of re-
demption, to which he is entitled, even though the legal estate
had never vested in the defendant, the mortgagor, but had
beep conveyed to the mortgagee by the trustees, in whom it,
had been vested in trust for him ; but the mortgagee will be
protected (<;)• This was the common law doctrine, and, in con*
firmation of it, the statute IS Eliz. c. 4. s. 5. enacts, that <' If
any person or persons, accountant or indebted as is aforesaid,
shall at any time after he or they shall become accountant or
chargeable, as is aforesaid, purchase and buy, or cause to be
purchased and bought, any lands, tenements, or hereditaments,
and cause the assurance thereof to be made in the name of any
other person or persons, where the same is indeed meant or
intended to the use, profit, or behoof of such person, account-
ant or indebted, or of any other person or persons, and that the

(a) Wight*. 44. 398. Order for tale of Uad*s thai Omit

(£) On Extenta, lt9. will protect mortgagee and bow ; and 1

(a) Godot 289. Hardc.495. Forest'a Price, *07. Caooot be taken in execu-

*«*>. 1w& 4 Price* R* 207. Kex v. tion at the mk of a aubjee^ S East,

£niith9 hi Sitgden, V. mod P. Seaport. 467.

' same

CkXII. Pt I. Ste. V,] E&ents. 897

^manner ofpurcfcaskjg, am! secret uses, profits, of behoof,
shall be found by offitie or inquisition, that then all and every
lands, tenements, and hereditaments, so to be bought or pur-
chased, or caused to be purchased, (as is before mentioned in
this last proviso,) shall, by virtue of this Act, be taken, secured,
and used for the satisfaction of the arrearages and debt of eve-
ry such accountant or debtor, as is above mentioned, to all ip-
tents and purposes, as though the person or persons indebted,
upon his or their account or farm, were thereof actually seised
of such estate, that was conveyed to any person or persons, by
any such accountant or debtor, or by his means, as i» afore-
said ; and that all sales to be thereof made by the Queen's Ma-
jesty, her heirs or successors, for satisfaction of such debt, or,
arrearages, as shall be found, as is aforesaid, to be due and ow-
ing to our said sovereign lady the Queen, her heirs and suc-
cessors, shall be of the like effect, and be used and done in
such like manner and form as is before expressed."

Rents-service (a) and rents-charge (6), and tithes in the
hands of lay impropriators, or leased for life, or for years (c),
may be extended as part of the realty ; but tithes in the hands
of ecclesiastical persons, cannot be seized under the extent,
though on the sheriff's return that the defendant is a beneficed
clerk, process to the ordinary, or a levari facias to the bishop,
may be issued (d).

It should also be observed, that copyhold lands, and leases
of copyholds, cannot be taken in execution, even at the suit of
the Crown (e). And though a term for years be extended as
land, instead of being appraised as a chattel, as it may be, it
is bound as a chattel only, from the award of execution, against
4 bondjtde purchaser before that period (f).

It will now be proper to consider the effect of the extent,
where a stranger claims — 1st, an interest and property in the
lands of the debtor; or, 2dly, has a lien or claim on them, by
virtue of a judgment, or Other debt of record, or an execu-
tion.

(«) H. 13 H. 4. Fit?. Awriy, 237. Pr. Index, tit Fterifaaau

(5) 7 Co. 3.7. The previoui arrears (*) Hardr. 438. Kitob. 1*3. Parker,

form of course part of the debts seized- 135. X Rol, Abr. 888. pU 3. Qmme, As

Ibid. to customary fretbokb, 2 Manning, Pr.

(e) 3 Price, $23. 2 Manning, 541. 541 , 2.

' <</) 2 Maanm* 540f 1. See Tkld's (J) * Rep. 171. 2 Eol. Ab. 156, %

uOf

298 Extents. [Ch.XIL Pt. L Sec. V.

!. Of course, even bondjide alienation and charges, do not'
in general bind the King, if they be made after the period from
which the lands of the Crown debtor are bound {a ) ; for the
King's debt is in the nature of an original charge on the land*
itself, and, therefore, must subject and bind every one that
claims under it And it has been held, that a term of years,
created out of an estate, prior to the right of the Crown attach-
ing on the estate, and assigned to a trustee, in trust for a pur-
chaser, would not protect such purchaser against Crown debts,
though he purchased bond Jide9 and without notice (ft). But it
is still a common law rule, that alienations and charges, as
sales, legal mortgages, &c. and even, ft seems (f), voluntary
charges, if bond fide created before the claim of the Crown on
the land commenced, are valid (rf). And we have just observ-
ed, that a term for years bondjide purchased from the defend-
ant, shall be bound as against a purchaser, as a chattel only,,
from the award of execution (e).

The general common law doctrine is, however qualified by*,
and must be carefully regarded, with reference to the 75th
section of the statute of extents, 35 H. 8. c. 39. which vests in
the Crown a continuing claim in certain cases on estates, after
die death of the Crown debtor. Fee simple lands might it
seems be followed, but at common law, if a tenant in tail be-
came indebted to the King in any manner and died, the King
could not extend the land in the seisin of the issue in tail, be-
cause the King was bound by the statute de donis condition^
alibus (f). To remedy this, the statute of Hen. 8. enacted,
that all manors, lands, tenements, possessions and heredita-
ments, "the which now be, or that hereafter shall come or be,
in or to the hands, possession, occupation or seisin of any
person or persons, to whom the same manors, lands, tenements
or hereditaments, have heretofore or hereafter shall descend,
revert or remain in fee simple or in fee tad, general or special.

(a) 7 Rep. 91 ; 3rd Resolution. Wight*. 34. Per Car. in Rex v. Smith,

(A) Rex v. Smith, Sugd.. V. and P. Sugd. V. and P. Equitable mortgage

A pp. &c. See however Mr. Sugden's and mere agreement to tell, will not, it

observations on this point seems, be available. Post, 303. 1 Price,.

(e) At least this is so when the Crown SI 6, 220, notes,

claims by forfeiture. 2 Vez. 116. (e) Ante, 297. 8 Rep. 171.

(d) Gilb. Excheq. 91. Moore, 12, (/) 7 Rep. 21. Plowd. Ld. Berke-

126. 2 Mod. 247. 1 Price, 207. 1 ley's Case.

3 by,

Ch.XII. Ptl.Sec-Vi] Extents. 999

by, from or after the death of any his or their ancestor or
ancestors as heir, or by gift of his ancestors whose heir he is,
which said ancestor or ancestors was, is or shall be indebted
to the King, or to any other person or persons to his use, hf
judgment, recognizance, obligation or other specialty, the debt
whereof is or shall not be contented and paid : that then in
every such case the same manors, lands, tenements, possessions
and hereditaments shall be and stand, by authority of this
Act, from henceforth charged and chargeable to and for the
payment of the same debt, and of every part thereof." And
by the same section, the heir is made liable, thqugh not men-
tioned in the specialty (a).

The debts of the ancestor mentioned in the statute are not
confined to such as accrued before the conveyance : and conse*
quently the heir who claims by the gift of his ancestor, whether
in fee simple or in fee tail, shall be bound to pay the King's
debt, whether due before or after the gift (6). ,It will however
be remarked that the statute mentions only four species of
debts from the ancestor, viz. " by judgment, .recognizance,
obligation or other specialty," and is confined to debts " to the
King or to any other person or persons to his use." Conse-
quently other debts than those by judgment, recognizance,
obligation or other specialty, remain as at common law:
and the statute does not apply where the debt, of whatever
nature it be, was not originally due to the King but to a
subject, and accrued to the King by reason of an attainder,
outlawry, forfeiture, gift of the party, or by any other collateral
way or means. In neither of such cases is the land in the
possession of the heir in tail, chargeable for the Crown debt(c).
And it has been resolved on the statute, that if a tenant in tail
become indebted to the King by one of the four ways men-
tioned therein and die, and before any process or extent, the
issue in tail bandjlde alien the land in tail, it shall not be ex-
tended by force of the statute, for it only renders liable the
land in the possession or seisin of the heir in tail, against the
issue in tail, and not the alienee (d). Lands in fee simple
were extendible at common law, in the hands of any person ;

(a) See 1 Inst. 586, a. Wood's Inst. (c) Ibid. 91 ; 2d and 4th Resolution.

SO. (<Q Ibid. 3rd Resolution.

(b) 7 Rep. 19; 6th Resolution.

and

000 Extent*. [Ch-X1L Ptl.Sec.V.

and therefore as to them the statute was dedatatroum antiqui
juris, and the alienee of such fee simple lands, from the heir
of the Crown debtor, would not, it seems, be protected ; but as
to estates tail, the statute was introductivum mm juris, against
the issue in tail. It seems also that a conveyance in consider-
ation of marriage, is not a gift within the meaning of the
statute (a).

It has been observed by C. B. Manwood (6), that the heir
of a Crown debtor shall not be charged if his executor have
assets ; nor the feoffee who comes in by purchase, if the heir
have assets ; for the heir comes to the land gratis, and there-
fore with reason ought to be charged. * On the death of the
King's debtor, process shall issue against the executors, the
heir and terretenants jointly at once (c).

It seems that lands held by the Crown debtor when alive, as
joint-tenant with another person who survives him cannot be
extended after the debtor's death in the hands of the survivor,
they being bis by survivorship (rf). And if a party 'purchase
or convey lands to himself and Ids wife (for her jointure), and
to his heirs, and then become indebted to the King and die so,
no execution having issued during his life, the land cannot be
charged during the life of his wife (*)• And the wife's dower
is free from debts due from the deceased husband to the
Grown (/).

Commissioners of bankrupts have but a power and the as-
signment from them to the assignees of die bankrupt's lands
by bargain and sale is not complete till enrolment (g) : and
-consequently the Crown may take the lands though the teste
of the writ be subsequent to the bargain and sale if it be prior
to die enrolment (A),

2. As to the effect of the extent, where a subject has a lien
or claim on the defendant's lands by virtue of a judgment or
other debt of record or an execution, &c v

Where the subject has a lien on the land by judgment prior

(•) ft Leon. 90. 7 Rep. 19. Moore, (/) Co. tit 31, a. See P. N. B.

1*6. 150,1. Bra Distress, 19.

(6) Dyer, 67, b. (g) 13 El. c. 7. s. 9. Sir T. Jooei,

(c) Stvil. 52. 19G. Montag. BkpU Laws, 465. West,

W C*Lit.lS5,i. 140.

{«) 3 RoLAJk 156. 1 Wight*. 39, (A) Ibid.
40.

*

6 10

Ch.XH. Pul. fip*V.] Ester*. soi

to the King's debt of record or the entry into office &c. or to
the commencement of the Crown suit, end has perfected his
execution before the issuing of the extent at the suit of the.
Crown, the subject shall retain the lands against the Crown's
extent (a). But it appears that if the Crown suit be commenced
prior to the subject'* judgment being obtained, the Crown pro-
cess shall at all events prevail.

It seems to have been clear at common law, that though a
subject has * judgment prior to the King's debt or before office
entered into under the statute of Elisabeth* yet the King might
by an. extent issued before execution commenced, or even after
it was commenced if before it was perfected (b) by the subject,
take the defendants lands and thereby oust the subject's execu-.
tion (c). Chief Baron Gilbert observes, " if the subject's debt
be by statute staple on judgment, and prior to the King's debt;
and the King extend the lands first ; the subject shall not, by
any after extent, take them out of his hands. But if sodt
judgment be extended, and the subject has the possession dei
livered to him by a liberate, he shall hold it discharged from
the King's debt; but if the King's extent ooroe before the pea*
session by liberate, the King's extent shall be preferred, and
the subject wait till the King's debt be satisfied* The reesofe
of the difference is, because the King's debt is in nature of %
feudal charge ; which if it comes on the lands before the pro-
perty of* them is altered, it seises them as it might have done
for the original service at first imposed ; but if there had been
a lawful alienation before such debt, there is not the fend of
the tenant, and therefore such charge cannot affect it; there-
fore if there was a precedent judgment or statute staple, and
a libetate pursuant, before the King's extent comes down, there
it qpnnot charge the lands ; because the property is altered by
the extent of the subject, which relates to the time that the
judgment was first given,, or statute staple acknowledged ; be-
cause such exten£ and liberate of the subject was only execut-
ing such judgment or statute on the land, and the execution
was relative to that judgment, which was prior to the King's
charge ; and so there was a complete alteration of property

(a) Gilb. Exch. 91, fee, 3 Leon. 939. W Oilb. Bach. 91. 3 fee*. Wfc

Hardr.93. Wert, 160. Catet m P»ri. 72. H*rdivl06. 1 E**,

(*) 1 East, 338. 33d, 16 Ewt, 279.

prior

302 Extents, [Ch. XII. Pt. I. Sec. V.

prior to the King's charge* before. his extent came down: but
if the King's extent had come before the liberate, he had
charged the land whilst it was in the hands of his debtor, and
then his charge would be satisfied, as if it had been in the first
feudal donation ; for nothing can hinder the King's charge,
(which comes on the land as if it had been settled in the first
feudal donation,) but what amounts to a precedent alienation ;
for so far as there is a precedent alienation, they are not the
lands of his debtor, and the feudal charge is only laid on the
lands of his debtor; and if such lands were not his debtor's
lands, they are not subject to that charge ; and a liberate in
pursuance to a preceding judgment, amounts to an alienation
of the land itself, before it became charged to the King."

" Note also, the lien upon lands by the subject's debt came
in by the statute West 2. ; for before that, the judgment did
not bind the lands ; but the King's debt bound the land before
that statute. But that statute does not touch the King's pre-
rogative, and therefore the King has a power to levy upon the
lands notwithstanding the preceding lien by judgment; and
therefore the King may seize lands that are bound by a pre-
ceding judgment, whilst the lands are in the custody of the
law on the elegit or extent, and before they are actually deli-
vered out to the creditor by the liberate, as a satisfaction of his
debt ; but when they were actually delivered out to the creditor
by the liberate, they then no longer belonged to the debtor ;
since the King's writ had delivered them over for satisfaction
of a debt that was precedent to the King's : for the creditor
did not take them under the burthen of the King's debt, because
his lien was antecedent to the King's debt; and it were repug-
nant to construe him to take the land sub onere of the King's
debt, when he took it in satisfaction of a debt precedent."

It will be observed that C. B. Gilbert does not notice the
provisions of the statute SS Hen. 8. c 89. s. 74. which cer-
tainly render the above doctrine doubtful in cases where the
Crown process is issued for debts not due on outlawries, &c. ;
but for debts originally due to the King, and where the sub-
ject's judgment has been obtained, and execution commenced
before the Crown suit has commenced, or its process been
awarded. This has been already considered (a).

(a) Ante, 289 to 292.

The

Ch.XII. Pt.I. Sec. VI.3 Extents. 80S

•

The extent prevails in favour of the Crown against a mere
previous agreement with a third person, for the sale of the
defendant's estate, though part of the purchase-money has
been paid, because the conveyance not having been executed,
thefee Still remained in him (a). It seems also to be a general
rule, that an equitable mortgage by deposit of title deeds will
not hold against an extent (ft). It will not at all events if such
deposit be made by an accountant of the Crown in the hands
of one who has an opportunity of knowing that the depositor
is or may become a debtor of the Crown (c).

Debts and Credits.

The sheriff is also to seize debts and credits due to the de-
fendant, and specialties his property, which leads us to the
6th Section.

SECT. VI.

»

Of seizing the Debts, Specialties, and Credits of the Cream Debtor,
and herein of Extents in Chief, in the second degree, i. e. against
Debtors to the Crown Debtor.

Under the extent, it is the duty of the jury to inquire re-
specting the debts due from third persons to the Crown debtor,
and his credits and specialties. The jury should in their in-
quisition find, and state, any special matter respecting such
property, and such finding vests the debtor's rights and inte-
rests in the Crown; and though the seizure be nominal, the
King is thereupon entitled to adopt measures against the de-
fendant's debtors. And though extents in aid are properly
limited in this respect, it seems, that the Crown may proceed
against the debtors to those against whom the extent is
issued, for its benefit, in infinitum, that is, to the remotest
degree (d).

It seems, that debts due to the defendant are bound as
goods are from the fiat or teste of the extent, and not merely

(a) Rex». Snow, 1 Price, R» 220, . (c). Ibid. 216.
note (*). (rf) Hanlr. 404. Com. Dig. tit. Detfce,

(A) Rex v. Benson, Ibid, note (r). G. 15.. Gilb. Hist. Excheq. 178.

from

SO* Extents. [Ch. XII. Pt I. Sec. VI.

from the caption of the inquisition under which they are found.
This 9t least has been decided in a case where the defendant
bad become a bankrupt, and die debt had been assigned by
the commissioners to the assignees, between the teste of the
writ and caption of the inquisition (a). It has been subsequently
held, that inquisitions are bad which merely state that the debt
was due to the Crown debtor, on the teste of the writ, omitting
" necnon die captionis inquisitionis (b)" Mr. West observes (c)»
that the distinction to be collected from these two cases seems
to be this : " That payment of a debt to the Crown debtor, af-
ter the issuing of the extent, and before the caption of the in-
quisition, will discharge a party paying without notice of the
Crown process ; and, therefore, it is necessary that the inquisi-
tion should state that the party was indebted at both periods*
But a mere assignment of the debt to the assignees of a bank-
rupt between the teste pf the extent and caption of the inquisi-
tion, will not discharge the debtor as against the Crown/9 It
is, however, apprehended, that if the debt is in one case bound
from the fiat or teste of the writ, it would be in the other, and
that the extent would over-reach even a band Jide payment,,
after the teste and before the caption, as it does bond jide alien-
ations and sales of goods during that period. At least the con-
trary does not seem to be proved by the decisions, that the in-
quisition must state that the debt is due on the day of the find*
ing. That statement may be necessary, in order to shew, that
the debt is not destroyed by the operation of other circum-
stances than payment, and it is easy to conceive that there may
be other events transpiring after the teste, which would destroy
the debt, even as against the Grown. It should seem, that
though the defendant has been p$id the money, yet as that
payment would, if the general effect here attached to the for-
mer decision be correct, be effectless, at least as against the
Crown, the inquisition might comedy state, that the money
was still due. No substantial legal reason can be assigned why
debts should not be bound from the teste of the writ, as well as
goods. In either case hardships may occur. And if the Crown
can be bound by a subsequent payment of the debts, it

(a) t Vin. Ab. 104. 1 Atk. 868. 169 and 389.
BmgHam, *16. Wett, SOT. (c) Wot, 164

(A) Banb. US. 8 Price, 396. W«ft,

difficult

Cb, XH. Pt. I. Sec. VI.] Extent** 90S

difficult to prove why it should not equally be bound by an ac-
tual assignment of R, under a commission of bankrupt ; for the
Crown, a$ already observed, is in general bound by an actual
assignment under a commission of bankrupt, if such assign-
ment be executed before the teste of the writ.

It is clear at the present day, that debts due to the Crown
debtor on simple contracts may be seized under the extent (a);
and the general ride seems to be, that any debt or credit due to
the Crown debtor, for which the latter might maintain debt,
covenant or indebitatus assumpsit* and which would support
prpceediggs at the suit of the Crown against its immediate
debtor if due from him, may be seized under the inquisition;
a$ suras due on, and which lay in, account (J) : and a liability,
infufuro, on a bond, bill, or note, &c. then in existence, maybe
found on the inquisition (c) ; but process cannot, in general, be
issued thereon, till the instrument be due (d). Nor can it issue
at all, unless the debt be found and seized on the inquisition,
upon the first extent (e). If the debtor to the Crown debtor
have accepted a bill for the debt, drawn by the latter in favor
of a third person, or payable to the Crown debtor, and which
he has indorsed over ; or have drawn a bill on a third person,
for the debt in favor of the crown debtor, which has been ac-
cepted by the drawee, and such bills are not due at the time of
the inquisition, the debt cannot be found under k (/). On the
same principle, that which the defendant could not alien, can-
not be taken on the extent ; as an annuity created in favour of
the defendant, but subject to be suspended, in case of any act
done to change or alien (g).

Under an extent against one, the whole of the debts due to
that one and another may be seized, but the other creditor
seems to have a remedy, by proceedings in equity against the
Crown for an account (A). The form of the extent shews that
under an extent against several, the debts due to any one may

(«) Lane, 93. 4 Rep. 95. See (*) Bingham, 41*, note (r).

Ptowd. Com. 441, as to taking rents in (/) 1 Wight*. 32. Rex v. Cost,

arrear.- 2 B. and Aid. 258. Hughes, 186. Rex v. Heath, JIu$he*,

(b) Ante, s. 1 . 1 55. See further jx*t. pt. 2. s. 5. Extent!

(c) Hughes, 106, 1 18, 19. in Aid and Pleadings thereto.

(d) See ante, sect. 1. and post, part (g) ] Wigbtw. 386. 2 Mannipg, Pr.
2. s. 5. Pleadings, as to the best mode 548.

of finding a liability on bills and notes. W Sec MSS. case* efted, West, Ext.

See West, 165. 170. Sec 1 Wightw. 50, 52.

x be

S06 Extents. [Cli. X H. Pt. I. Sec. VL

be seized. So if one of the obligees in a bond be outlawed,
the duty being intire is vested in the Crown, and the King
cannot have a partner with him (a). But in favor of commerce,
under an extent against one of several partners, only the in-
terest and share of that one can be taken (ft).

Under the extent against the Crown debtor, the debts due
to him are merely found by the inquisition, which amounts to
a seizure in law. The sheriff cannot compel payment; that is
effected by a scire facias or immediate extent, which are issued
in the same manner and subject to the same rules, as are ap-
plicable in the case of an extent against the immediate Crown
debtor.

When the debts due to the Crown debtor are seized, that is,
are found under the inquisition taken on the extent against
the Crown debtor, they become debts to the Crown ; and, if
due (c), the same process may issue against the person owing
them, as against the original debtor to the Crown, and the
debtor to the King's debtor stands in the same situation.

The ordinary mode of proceeding also for debts due to the
King's debtor, is by " scire facias (d)/' and where the debts are
small, the Court may order a receiver to collect them, and pay
them to the Deputy Remembrancer (e). But if, on an extent
against the King's debtor, the inquisition find that B. is in-
debted, to him, on return of the inquisition and affidavit made,
that the money in J3.'s hands is in danger, an immediate
extent shall issue against R (f ); even though there be reason
to suppose that the King's debtor became so with intent to
strip the rest of JJ.'s creditors.

. So if it be found by inquisition against a Receiver-General,
that he has paid money over to A., an immediate extent may
issue against A*9 for this is the King's money (g).

It is held, that upon affidavit of debt and a Baron's fiat, an
immediate extent may issue against the debtors to the Crown
debtor, before the extent under which they are found to be
debtors to the Crown jdebtor, is returnable (k) ; though it must

(a) IW<1. Bro. Joint Ten. 34, 39. (e) Bunb. 293.

Oblig. 50; Forfeiture, 16. Plowd. (f) IbM. 24. 3 Price, 299.

243, 259, 323. (g) Bunb. 128.

(*) Wigfatv. 50. ante, ch. 11. a, 3. (A) Rex v. Peanon, 3 Price, 299;

(c) Ante, 305. West. 242.

(c/) Ax to which see ante, sect. 2.

be

Ch.XILPt.I.Sec.VII.] Extents. 807

be actually returned (a) before tUe second extent can issue.
As soon as this debt due from the debtor to the Crown debtor,
is recorded by the return of the inquisition under which it is
found, the proceedings for the recovery of such debt are sub-
stantially the same as for the recovery of the debt to the Crown
from its original debtor. .

SECT. VII.

Venditioni exponas. — Order far Sale of Defendant's Lands, $c*

Ir in pursuance of the rule which will be mentioned in the
ensuing chapter, and in which the mode of resisting extents
will be considered, no one appear and defend, a venditioni
exponas issues; and under it all the defendant's goods, against
which alone it is directed, may be sold, though their yolue far
exceed the amount of the debt; unless the writ be indorsed to
sell the amount of the debt only, as it sometimes is (ft). No
motion need be made to the Court to authorize the issuing of
the writ, but the defendant is entitled to notice of the intended
sale(c). The sheriff is to sell for the best price he can, and at
least for that price at which the goods were appraised, and to have
the proceeds of the sale before the Barons to be paid to them
to the use of the Crown (d). If the sheriff cannot sell the
goods for the appraised price, he should return that fact ; and
then a venditioni exponas issues for him to sell pro optimo
pretio9 without reference to the appraisement. The sheriff
must make a return of the whole sum produced by the sale,
when the Court will order it to be paid over, deducting pound*
age ; and he must move the Court for any extra allowance to
which he may be entitled (e).

The, sale of lands seized under an extent at the suit of the
Crown, is, at the present day, regulated by the statute 25 Geo.
$• c 95. which abolished the common law proceeding by a
levari facias^ concerning which much is to be found in the old

(a) Rex c, Pearson, 3 Price, 299. tee port, pt 2. s. 5.
West, 242. (c) Ibid. 2 Priced R. 155. .

(6) West, 219, 220. 2 Manning, Pr. (<Q See Brown, pape 486.

653, 4. As to sale on extents in aid, («) Price's R. 205. West, 220.

x 2 books,

\

308 Extents. [Ch.XII. Ft I. Sec. VII.

books, and under which only the rents and growing profits of
the lands were levied, and the prolix and inconvenient remedies
given fay the statute of Eliz. (a). The 25 Geo. 3. enacts, that
it shall and may he lawful to and for his Majesty's Court of
Exchequer, and the same Court is thereby authorized, on the
application of his Majesty's attorney-general, in a summary
way, by motion to the same Court, to order that the right,
title, estate and interest of any debtor to his Majesty, his heirs
and successors ; and the right, title, estate and interest of the
heirs and assigns of such debtor, in any lands, tenements or
hereditaments which have been or shall hereafter be extended
under and by virtue of any such writ of extent or diem clausit
extremum as aforesaid, or so much thereof as shall be sufficient
to satisfy the debt for which the same shall have been so ex-
tended, shall be sold in such manner as the said Court shall
direct; and that when a purchaser or purchasers shall be
found, the conveyance of the lands, tenements or heredita-
ments so decreed to be sold, shall be made to the purchaser
or purchasers, by his Majesty's Remembrancer, in the said
Court of Exchequer, or his deputy, under the direction of the
said Court, by a deed of bargain and sale, to be inrolled in the
same Court; and that from and after the making of such con-
veyance, and the inrolment thereof as aforesaid, the bargainee
or bargainees in such conveyance, and his or their heirs, ex-
ecutors, administrators and assigns, shall have, hold and enjoy
the lands, tenements and hereditaments therein comprised,
for his and their own respective use and benefit, not only
against the extent of the Crown, but also against such debtor
of the Crown, or the surely or sureties for such debtor, and all
persons claiming under such debtor, or the surety or sureties,
unless by a title paramount to, and available in law against
such extent as aforesaid: and all monies which shall become
payable from any such purchaser or purchasers as aforesaid,
shall be paid, accounted for and applied towards discharge of
the debt due to the Crown, and of all costs and expenses which
shall be incurred by die Crown in enforcing the payment of
such debt, in such manner as the said Court of Exchequer
shall from time to time order and appoint; and i£ after pay-
ment of the whole debt to the Crown, and of all costs and

(a) See 13 Eliz. c. *. s. 2. 27 Eliz. c. 0. s. 2. 39 Eliz. c. T.

expenses

Ch. XII. ft. I. Sec. VII.] Extents. 309

expenses incurred in enforcing the payment thereof, there shall
be any surplus of the monies arising from any such sale, the
said surplus shall belong to the same person or persons as
would be entitled to the lands, tenements or hereditaments
sold, if there had not been a sale thereof, and shall accordingly
be paid to such person or persons, under the order and direc-
tion of the said Court of Exchequer, upon motion or petition
to the said Court, to be made upon such notice to the Crown,
and to be supported by such affidavits or other proofs, as to
the said Court shall from time to time seem just and reason*
able/9 And by the 2d sect, the Court of Exchequer is enabled
to order the production of tide deeds.

By virtue of this statute die express leave of the Court must
be obtained before the defendant's lands can be sold, and the
Court seems to possess a species of legal discretion in granting
this leave. The lands are to be sold " in such manner" as the
Court shall direct, and the Court will not make an order for
the sale, if goods sufficient to pay the debt have been seized
under the extent (a).

It is observable also, that the party's lands are to be sold
only to the amount of the debt.

As before observed an equity of redemption may be taken
under the extent (6), but the Court will protect the interests
of the mortgagee. The mortgagor's interest alone should be
disposed of, and the mortgagee is entitled to notice of the
motion, oft an order to sell it (c). If the whole estate be sold
and the proceeds of the sale paid into Court, the Crown will
not be allowed on motion to satisfy the mortgagee, but the
Court will order a reference to the deputy remembrancer to
ascertain what is due on the mortgage (rf). So- in the case of
a claim of dower (e) : or where it is necessary and just that the
exact sum due to the Crown for principal and interest, &c.
should be ascertained (/).

(a) 3 Price, 40. S. C. in West, 177. (rf) Ibid.
825. «j Ibid. 71.

(b) Ant*, lect. 5, Lands. (/) Ibid.
<c) 1 Price, *i07. 2 Price, 67.

SECT.

310

Extents. [Ch.XII. Pt. I. Sec. VIIL

SECT. VIII.

Costs.

With respect to coste, the general rule is, as observed by Sir
Win, Blackstone (a), that " the King (and any person suing
to his use (b) ), shall neither pay nor receive costs ; for, besides
that he is not included under the general words of the statutes
relative to costs, as it is his prerogative not to pay them to a
subject, so it is beneath his dignity to receive them." It seems
that the statute 43 Geo, 3. c. 46. s. 5. which enacts, " that in
every action in which the plaintiff shall be entitled to levy
under an execution against the goods of any defendant, such
plaintiff may also levy the poundage fees and expenses of the
execution, over and above the sum recovered by the judg-
ment," does not extend to the Crown. For none of the many
statutes respecting costs and poundage have ever been held to
extend to the Crown, where it has not been specially named;
and this statute has no words which would embrace the Crown
more than the several statutes anterior to this : and besides,
the extent is not an action, but an execution (c).

Some exceptions to the general common law rule, that the
Crown is not entitled to costs, have however been justly in-
troduced by the legislature; and it would be but reasonable
that the Crown should in all cases be entitled to its expenses*
which sometimes exceed the amount of the debt

1. The statute of extents, 33 Hen. 8. c. 39. s. 54. enacts,
that " the King in all suits hereafter to be taken in or upon
any obligation or specialties made or thereafter to be made to
the King, or any to his use, shall have and recover his just debts,
costs and damages^ as other common persons use to do in suits
and pursuits for their debts."

This statute does not it will be perceived relate to simple
contract debtors ; even when their debts are rendered records
by the inquisition on the commission to find debts : but is COn-

fa) 3 Bla. Com. 400. 1 Amtr. 50.
7 T. R. 367. 0*ls on Quo Warranto.
9 Ann. c. 20. t. 5. 1 Burr. 402, 407, 8.

(b) Stat. 24 Hen. 8. c. 8.

(r) Sec 7 T. R. 367. West, 238.

fined

Ch.XII. PU. Sec, VIIL] Extents. Si 1

fined to debts by bond or other specialty originally made to the
King or to any one to his use (a).

2. In all cases where lands are sold by virtue of the 25 Geo. 3.
c. 3.5. the monies produced by the sale are as we have just
seen " to be applied towards discharge of the debt due to the
Crown, and of all costs and expenses which shall be incurred
by the Crown in enforcing the payment of such debt/' It is
frequently therefore important for the Crown that the defend-
ant's lands should be seized and sold under the extent, and, as
before observed, if the defendant apply to pay the debt into
Court, he must pay costs too, if, under the circumstances, the
Crown would on succeeding be entitled to sell the party's
lands. But the Court will not compel him to pay costs into
Court with the debt, if the goods seized, on the sale whereof no
costs are in general allowable, be sufficient, though there be
lands also ; because it is a rule that the defendant's lands shall
not be sold if the goods are sufficient, and the Court will not
make an exception to this rule merely that the Crown may get
its costs (A). It seems that the Crown may, by extending its
debtor's lands only, secure its costs, though the defendant is
amply supplied with goods.

On the sale of lands under an extent, the sheriff is not en-
titled to poundage (c), and therefore it cannot constitute an
item of costs payable by the defendant to the Crown.

3. By the statute 43 Geo. 3. c. 99. s. 41. collectors of taxes-
are in certain cases liable to costs in proceedings at the suit
of the Crown.

A Crown solicitor's bill of costs may be taxed (rf), by the de-
puty remembrancer (e). If costs are levied when not due,
the Court will on motion order them to be refunded (/*).

(«) 1 Price, 434. But when the (c) Post, 312, 314..

Court grant any indulgence, tbey some- (rf) West, 230.

time* make it a condition that costs ab&U (e) 3 Price, 280.

be paid. Hardr. 136. (/) 1 Price, P. 448.

(A) Aute, 309.

SECT.

312 Extents. [Cb.XIL Pt.I. S«c.lX.

SECT. IX.

Poundage.

At common law, poundage was not due on an extent. But it
is enacted, by the 3 Geo. I.e. 15. s. 9. that " All sheriffs who
shall levy, any debts, duties, or sums of money, whatsoever,
except post fines, due or thereafter to become due to the King's
Majesty, his heirs or successors, by process to them directed,
upon the summons of the pipe or green wax, or by levari fa^
cias,, out of die Court of Exchequer, shall from time to time,
for their care, pains, and charges, and for their encourage-
ment therein, have an allowance upon their accounts, of twelve-
pence out of every twenty shillings, for any sum not exceeding
one hundred pounds, so by them levied or collected ; and the
sum of sixpence only for every twenty shillings, over and above
the Jfrst one hundred pounds ,* and for all debts, duties, and
sums of money, except post fines, due or to become due to his
Majesty, his heirs and successors, by process on Jieri facias and
extent, issuing out of any of the offices of the Court of Exche-
quer, the sum of one shilling and sixpence out of every twenty
shillings, for any sura not exceeding one hundred pounds, so by
them levied or collected ; and the sum of twelve pence only for
every twenty shillings over and above the first one hundred
pounds. Provided always, such sheriff shall duly answer the
same upon this account, » by the general sealing day of such
Term, in which he ought to be dismissed the Court, or in such
tin\e to which he shall have a day granted, tb finish his said
accounts* by warrant signed by the Lord Chief Baron, or one
of the Barons of the coif of the said Court for the time being,
and not otherwise."

And by section 13, " For preventing of oppressions and in-
juries, which may happen to his Majesty's subjects, by the abuse
of sheriffs, bailiffs, and others, employed in levying and col-
lecting any debts, duties, or sums of money, due or thereafter
to become due to his Majesty, his heirs or successors, by pro-
cess of the Court of Exchequer ;" it is enacted, that " No she-
riff, under-sherift bailiff, or other person, employed in levying
or collecting any of the said debts, duties, or sums of money,
shall take, ask, or receive any fee, gratuity, or reward, whatso-
ever,

Ch.XIL Pfc. t Sec* IX.] Extents. il $

ever, of the person or persons liable to pay the said debts, du-
ties, or sums of money, or of any other person, for or upon
pretence of such levying or collecting, except the sum of four
pence only for an acquittance of such sum as shall be so levied
or collected ; which acquittance such officer is thereby required*
to give and deliver to the person upon or from whom sud*
debt shall be levied, collected, or received ; and the bailiff, or
other person, receiving such debt or sum of money, shall, from
time to time, answer and account for the same to the sheriff or
his deputy, and may require an acquittance also from such she-
riff or his deputy, for such sum, who are hereby required to
give the same without any fee or reward ; and of and from such
debts or sums of money so levied, collected, or received as
aforesaid, the said sheriffs, and every of them, shall effectually
discharge the said debtors and persons respectively, by telling
and answering the same to his Majesty, his heirs and succes- '
sors, upon their respective accounts, in the Exchequer. And
in case any sheriff, under-sheriff or deputynsherij^ shall riichil,
or not duly answer to the Crown any debt or sum of money so
levied, collected, or received, such sheriff under-sheriff, or
deputy-sheriff, for every such offence, shall forfeit treble dama-
ges to the party aggrieved, and double the sum so nichllled, or
not duly answered as aforesaid; which said damages and pe^
nalty sWl be ordered, decreed, and given to die person ag-
grieved, by the Court of Exchequer, upon complaint and proof
of such abuse as aforesaid, made and exhibited before die Ba-
rons of the said Court, in such short and summary way and me-
thod as to them shall seem meet] and in case any sheriff, un-
der-sheriff, deputy-sheriff, bailiff or other person, shall pre-
sume to demand, take, or receive any sum or sums of money
whatsoever, be the same more or less, of any person whatso-
ever, from whom any debt or sum of money is or shall be due
and payable to the Crown, by process out of the Court of Exche-
•quer, for or in respect, or upon pretence, of executing the said
process, or for or in respect, or upon pretence, of fees due to
diem, or any of them, for collecting or receiving the same, con-
trary to the true intent and meaning of .this Act ; or if any of
the officers, or persons aforesaid, shall demand, take, and
receive, any sum or sums of money whatsoever, for not levying,
or forbearing to levy, any debts, duties, or sums of money, due
to his Majesty, his heirs and successors, and written out to

6 them,

S14 Extents. [Ch.XIL Pt I. Sec.IX.

them, or any of them, by the process aforesaid; in all and every
such case, every person so offending, and being thereof lawful-
ly convicted, shall be adjudged, deemed, and taken to be guilty
of extortion, injustice, and oppression; and all and every such
person and persons, being thereof lawfully convicted, shall
forfeit, for every such offence, treble damages and costs to the
party aggrieved, and double the sum so extorted. All which
damages and penalties shall be ordered, decreed, and given, by
the Barons of the Court of Exchequer, upon complaint and
proof of such extortion, made and exhibited before them, in
such short and summary way and method as to them shall seem
meet as aforesaid ; provided such conviction be had and made
within two years after such offence committed, and not other-
wise/

Provided, by section 14, " that nothing in this Act contained
shall be construed to deprive any sheriff of such poundage or
allowance as is allowed and given to them by virtue of this
Act; or of such poundage, allowance or reward, as may here-
after be made, allowed and given to them, or any of them, by
warrant or order from the Lord High Treasurer or Commis-
sioners of the Treasury, Chancellor of the Exchequer or
Barons of the Court of Exchequer for the time being, for or
in respect of any extraordinary service to the Crown that may
happen to be performed by them, or any of them ; but that
the said sheriffs shall and may enjoy the full benefit and ad-
vantage of such poundage, allowance and reward, without any
impeachment or molestation whatsoever ; any thing in this Act
contained to the contrary thereof in anywise notwithstanding."

It will be observed that under this statute, which relates to a
seizure under an extent in aid, as well as on an extent in
chief (a), the poundage is claimable from, or falls on, the
Crown or other prosecutor of the extent, and not the defend-
ant, because the nett debt merely is to be levied; and as the
poundage is not to be levied in addition thereto, it is payable
out of the sum levied. If however the debt be secured by a
penalty, poundage may be levied in addition to the debt, so
that the levy do not exceed the penalty (£): and wherever the
Crown is entitled to levy its costs and charges, as mentioned
in the preceding section, and is bound by the statute 3 Geo. K

(«) Parker, 180. (b) 2 Anatr. 369.

to

Ch.XILPt.I.Sec.IX.] Extents. 815

to allow the sheriff poundage ; in such case poundage may be
levied by the Crown as an item of such costs and charges («)•
The statute S Geo. 1. does not however relate to the sale of
land under an order of the Court, in pursuance of the 25 Geo.
3. and consequently the sheriff, not being entitled to poundage,
the Crown cannot claim poundage as an item of its costs and
charges, as against the defendant (ft).

The poundage is claimable, though after the levy and before
the venditioni exponas, the debt be paid to the prosecutor of the
extent, or to the sheriff' for him (c). But it seems from the
wording of the statute, section S, that though the whole debt
be paid to the extent holder, the sheriff is entitled to poundage
only on the amount levied*

With respect to the apportionment of poundage between
different sheriffs, the 9th section of the statute (after re-
citing " that it frequently happens that the process issuing
out of the Court of Exchequer, for levying debts and duties
due to the Crown, may be in part executed by a sheriff before
he be superseded, and afterwards in part by the subsequent
sheriff; and that no provision had been made for settling and
adjusting the distribution of the fees and poundage, claimed
and demanded by them in such cases :) enacts, that when and so
often as any sheriff shall, by process out of the Court of Exche-
quer, seize or extend any goods, chatties or personal estate, into
the hands of his Majesty, his heirs or successors, for any debts
or duties due to the Crown, and shall die or be superseded before
a writ of venditioni exponas be awarded to him for sale of the
same, or before such sheriff hath made actual sale thereof; and a
writ shall afterwards be awarded to a subsequent sheriff, who
by virtue thereof shall make sale or disposition of such goods,
chattels and personal estate, so seized and extended by such
preceding sheriff as aforesaid, in such case the Barons of the
Court of Exchequer, if then sitting, and if not sitting the said
Barons, or any one of them, being of the degree of the coif, shall
order, settle and apportion the fees or poundage, due for such
seizure and sale, between such preceding and subsequent
sheriffs, in such manner and proportions as to him or them

(a) 3 Price, 280. (r) Parker, 180. 3 Anstr. 713, notes.

(A) Wert, 237. 5 T. R, 470.

shall

316 Extents. [Ch. XII. RJ! SecJX.

shall seem meet, with regard to the expense and trouble each
respective sheriff hath had, or shall have, in the execution of
the said process."

Where two extents issue into different counties for the same
debt, and both sheriffs seize goods, and the debt is paid to one
of the sheriffs before a venditioni exponas to either, that sheriff
to whom the money is paid shall have full poundage (a). But
in such case where the debt is paid to the officers of the Crown
immediately, the poundage shall be apportioned between the
sheriffs (A).

Under the statute S Geo. 1. the sheriff may retain his
poundage out of the sum levied under the extent, and need
not wait for the allowance of it on his account (c). When,
however, he makes his return to the venditioni exponas, it must
be of the whole sum produced by the sale, when the Court will
order it to be pud over, deducting poundage (d). And if the
sheriff have paid over the money levied to the prosecutor of
the extent, without having deducted poundage, he may obtain
it by motion to the Court (e).

By statute 3 Geo. I.e. 15. s. 14. as before observed, the
Lord High Treasurer or Commissioners of the Treasury*
Chancellor of the Exchequer or Barons, may give the sheriff
any additional allowance or reward, in respect of any extraor-
dinary service to the Crown. But the sheriff cannot deduct
any extra expenses, but must apply to the Court on a rule m$$>
for a reference to the deputy remembrancer for an allow-
ance (/). And if poundage be improperly taken, the Court
will on motion order it to be refunded*

(a) 1 Anstr. *79. 3 Anstr. 717. 1 (rf) 1 Price, 905.

Wiffhtwkk, 117. («) Parker, 180.

(*) 3 Anstr. 718, note. West, 240, 1. (/) 1 Price, 206. 4 Ibid. 13!.
(c) Parker, 180.

Part

Ch.XIL Ft II. 3CC.L] Exknte in aid. % 817

Part II. — Of Extents in aid.

Sect. L— In general. — The Course of Proceeding.

It has been before observed, that extents in aid owe their
origin to the statute of extents S3 Hen* 8. c. S9., and are
grounded on the principle, that the King is entitled to the
debts due to its debtor. The main distinction between extents
in chief and extents in aid is this, that the former issue at the
suit of the Crown, the latter at the suit and instance of the
Crown debtor, against his debtor* The prerogative process
is called an extent in aid when die subject, being indebted to
the Crown, avails himself of such process against his debtors.
In this case the writ is founded on a fiction. The fiction of
an extent issuing against the Crown debtor at the suit of the
Crown. The Crown debtor himself privately and pro jbrmA,
procures his debt, if by sample contract, to be put upon record
by means of a commission, and the inquisition taken under it,
If the debt to the Crown be by bond, this first step is of course
unnecessary. The Crown debtor then sues out an extent
against himself omitting all the words which direct the
sheriff to seize his body, goods, and lands, leaving the
words merely which direct the sheriff to seize his debts,
specialties, and sums of money. Under this extent the debts
due to the Crown debtor are found and seized into the Crown's
hands ; and on such finding an extent issues as in the other ,
case against the debtor to the Crown debtor (a). By the
57 Geo. 3. c. 1 17. s. 1. the produce of the extent is by order of
the Court to be paid over to his Majesty's use ; but it seems
the Crown debtor may procure the consent of the Crown to
the sheriff's paying it over to himself.

(«) West, 244. S Moaning, 568. the aofc of the Crown against ninuelT.
Extents in aid may alio be issued by the Ibid.
Crown debtor on an advene extent, at

SECT.

S18 Extents in aid. [Ch.XII.PUL Sec, III.

SECT- II.

To what degrees Debts may be seized on Extents in aid.

It seems from the older authorities that the King may, on
process of extent prosecuted at his instance, and for his
benefit, seize the debts due to his debtor, &c in infinitum,
i. e. to the remotest degree (a). It is not, however, so clear
to what degree the Crown debtor may use the process
by extent. According to the antient books, debts cannot in
such case be seized beyond the third degree, counting the
Crown debtor as one of them (b) ; and consequently only the
debtor of the debtor to the Crown debtor could in such case
be reached. But in the King v. Lushington (c\ the Court of
Exchequer held, that the Crown debtor is not to be ceunted
as one of the degrees, and therefore the process may be used-
even to the fourth degree, counting him, or to the third, omit-
ting him. In that case Austen and Co. were the original
Crown debtors, Boldero and Co. were indebted to Austen and
Co., the Lushingtons to Boldero and Co., and Miss Dehany
to the Lushingtons ; and on an extent against the Lushing-
tons, which had issued after extents against Austen and Co.
and Boldero and Co., the debt due from Miss Dehany to the
Lushingtons had been seized; and the Court held that this
debt had been properly seized, and that on the ground that
die Crown debtor was not to be counted in reckoning the de-
grees.

SECT. III.

What Crown Debtor may issue an Extent in aid. %

Before the statute 57 Geo. 3. c 1 17., the doctrine of extents
in aid for the benefit of the Crown debtor, had been carried
to an almost unqualified length, and there were but few Crown
debtors who were not entitled to convert to their own private

(a) Hanlr. 405. Com. Dig. lit. Dette, (*) Une, lit, 12. Parker, 16,259.

G. 15. (c) l Price, R. 95.

benefit

Ch. XII. Ft H. Sec. III.] Extents in aid. 319

benefit, a species of execution which should be confined to
the Crown. The unjust effect this frequently had on the funds
of a debtor by affording an undue preference called loudly for
a remedy, which was accordingly provided by the legislature.
By the above-mentioned statute, it is enacted, (Section 4.)*
" that from and after the passing thereof it shall not be law-
ful for any person or persons, companies or societies of per-
sons, corporate or not corporate, who shall or may be indebted
to his Majesty by simple contract only ; nor for any such per-
son or persons, companies or societies, who shall or may be
indebted to his Majesty by bond for answering, accounting for,
and paying any particular duty or duties, or sum or sums of
money, which shall arise or become due and payable to his
Majesty from such person or persons, companies or societies
respectively, for and in respect, and in the course of his or
their particular trades, manufactories, professions, businesses
or callings ; nor for any sub-distributor of stamps who shall
have given bond to his Majesty ; nor for any person who shall
have given bond to his Majesty, either jointly or separately,
as a surety only for some other debtor to his Majesty, until
such surety shall have made proof of a demand having been
made upon him on behalf of his Majesty, in consequence of
the non-performance of the conditions of the bond by the
principal, and then only to the amount of the said demand ;
to sue out and prosecute any extent or extents in aid, by rea-
son or on account of any such debt or debts to his Majesty
respectively, for the recovery of any debt or debts due to such
person or persons, companies or societies, or to such sub-dis-
tributor of stamps or surety as aforesaid ; and that all and
every commissioner and commissioners to find debts, extent and
extents in aid, and other proceedings which shall be so issued
or instituted at the instance of or for such simple contract or
bond debtor or debtors respectively, and all proceedings there-
upon shall be null and void : Provided always, that nothing
herein contained shall extend or be construed to extend to
preclude or prevent any persons who shall or may become
debtor or debtors to his Majesty by simple contract only, by
the collection or receipt of any money arising from his Ma-
jesty's revenue for his Majesty's use, from applying for and
suing out any commission or commissions, extent or extents
in aid, in case one or more of such persons shall be bound to

his

S20 Extents in aid. [Ch. XII. Pt II. Sec. IV.

his Majesty by bond or specialty of record in the said Court
of Exchequer, for answering, securing, paying over or ac-
counting for to his Majesty, the particular duties or sums of
money which shall constitute the debt that may be so then
due, from such person or persons to his Majesty (a); any
thing hereinbefore contained to the contrary notwithstanding.
" Provided, nevertheless, and be it further enacted, that no
extent in aid shall be issued on any bond given by any person
or persons as a surety or sureties for the paying or accounting
for any duties which may become due to his Majesty from any *
body or society, whether incorporated or otherwise, carrying on
the business of insurance, against any risques either of fire or of
any other kind whatever (b y

SECT. IV.

For what Sum an Extent in aid may be issued, — Affidavit and

Bat.

The 57 Geo. 3. c 117. s. 1. after reciting that extents in aid
have, in many cases, been issued for the levying and recover-
ing of larger sums of money than were due to his Majesty, by
the debtors on whose behalf such extents were issued, and that it
was expedient to prevent such practice in future, enacts, " That
upon the issuing of every extent in aid, on behalf of any debtor
to his Majesty, after the passing of the Act, his Majesty's
Court of Exchequer at Westminster, or the Chancellor of his
Majesty's Exchequer, or Lord Chief Baron, or other Baron of
the said Court, granting the fiat for the issuing of such extent
in aid, shall cause the amount of the debt, or sum of money,
due or claimed to be due to his Majesty, to be stated and spe-
cified in the said fiat; and that in all cases in which the debt or
debts found due to the debtor of his Majesty, shall be equal to
or exceed the debt stated and specified in the said fiatas afore-

(a) It should «m», that since ibis (b) As toextMts i» aid of $wet$m m

Act, the bond to the Crown must be for- general. Sec 2 Manning, Pr. 563, fcc.

frited before the extent hi aid can be 1 Wightw. 1.
issued by the obligor. See 1 Price, 80S.

said,

Ch. XlL Pt. 1 1. Sec. IV.] Extents in aid. 321

said, the amount of the debt so stated and specified in the said
fiat, shall be indorsed upoa the writ, and the writ so indorsed
shall be deemed to be, and be, the authority and direction to
the sheriff or other officer who shall execute such writ, in mak-
ing his levy and executing the same, as to the amount to be
levied and taken under the said writ; and that in all cases in
which the debt or debts found due to the debtor to his Ma-
jesty, shall be of less amount than the debt stated and specified
in the said fiat as aforesaid, the amount of such debt or debts
found due to such debtor to his Majesty, shall be indorsed upon
the writ, and the writ so indorsed shall be deemed to be, and
be, the authority and direction to the sheriff, or other officer,
who shall execute the said writ, in making his levy and execut-
ing the same, as to the amount to be levied and taken under
the said writ ; and that the money levied, taken, recovered, or
received, under or by virtue of eveiy such extent in aid so
prosecuted and issued, shall be, by order of the said Court,
paid over to and for his Majesty's use, towards satisfaction of
the debt so due to his Majesty as aforesaid."

There is some difference between the affidavit for an extent
in aid, and the affidavit for the extent against the ori-
ginal debtor to the Crown, which we have already consider-
ed (a). In the affidavit for an extent against the original debtor
to the Crown, it is necessary to swear to the fact of the debt
being due, as the affidavit is the only evidence of that fact; no
evidence of the debt being laid before the jury, on finding the
commission, according to the present practice, but the affida-
vit But on the taking of the inquisition under the first ex-
tent, on which the debt due to the Crown debtor is found, evi-
dence of that debt is always laid before the jury ; and, therefore,
all that is necessary to swear in the affidavit for the extent in
chief in the second degree is, that the defendant was found
indebted under the inquisition, (which is, in fact, merely iden-
tifying the defendant with the party found to be indebted under
the inquisition,) and that he is insolvent As to the allegation
of insolvency, the observations made on that part of the affida-
vit for the extent in the first degree, will of course apply he.re,
and to every affidavit for an extent (6).

The affidavit which is necessary to obtain an extent in aid

(a) Ante, 277. +b) W«t, 345.

Y states

322 Extents in aid, [Ch.XILPt.IL Sec-TV.

states— 1st, The debt due to the Crown from the Crown
debtor, who is the prosecutor of the extent in aid. 2dly, It
states the debt due to the Crown debtor from his debtor, who
is the defendant under the extent in aid. Srdly, That suck
debt is in danger of being lost from the insolvency of the de-
fendant. 4thly, That the debt due to him is a debt originally
and bon&jlde due to him without trust. 5th1y, That it has not
been put in suit in any other Court And, 6thly, That the
Crown debtor is thereby less able to pay the debt due to the
Crown. If the debt be by bond, it sets out the penal part of
the bond ; and, as has been before mentioned, usually proceeds
to state, that the obligor'has received money, for which the
party is accountable by the condition of the bond (a).

1. The necessity of the allegation of the debt due to the
Crown, from the prosecutor of the extent, which allegation' is
not required in the affidavit for an extent, in the second or other
degree, for the benefit of the CroWn, is apparent, from this con-
sideration, that on the latter extent there has been already an
affidavit of the debt due to the Crown, in order to obtain the
first extent ; but on the extent in aid, for the benefit of the
Crown debtor, there is no affidavit or proof of the debt
to the Crown, till the affidavit is made for the extent in aid.

2 & S. With respect to the allegation of the debt from the
defendant to the Crown debtor, and the danger of its being'
lost, the observations which have been before made on those
points, as to theextent in chief, will apply to this affidavit for
an extent in aid (ft).

4 '& 5. The allegations that the debt due to the Crown
debtor is a just debt, originally and bond Jide due and without
trust, and that it has not been put in suit in any other Courts
are rendered necessary by the rules of the 15 Car. I. by one of
which it is ordered*, " that no debts be assigned to the King,
nor found by inquisition for the King's debtors or accomptantfc
in aid, save such as are originally due to them bond Jide, with-
out any manner of trust, and according to die directions and
instructions hereafter following, viz. be who desirefh may debt
or debts to be found by the inquisition in his aid, shall
take this oath : the said B. maketh oath the day and year above
written, that he is justly indebted unto A. one of the farmers of

(a) Wert, *75, 6. ft Manning 575. {b) Ante, 277.

his

Ch.XII. Pt. II. Sec. IV.] Extents m aid. S3S

kis Majesty's customs, &c. and that the same debt is a just and
true debt, originally due to the said A., bond fide without any
manner of trust, and that the said debt hath not been put in
suk in any other Court, and that he hath not received the
same nor any part thereof, except so much, &c. ; and that C.
is justly indebted to him the said B^ originally and bond fide
without trust ; and that C. is much decayed in his estate, so
thai unless a speedy course be taken against the said C, the
said debt by him owing is in greatdanger to be lost"

And though these rules have been said by the Court in some
instances to be obsolete, yet .that observation must be confined
to such of these rules as do not appear to have been acted
upon ; but where the practice shews that they have been ad-
hered to, in those points they are still considered as binding.
And as far as respects the allegations at present under con-
sideration, all the affidavits for extents in aid, prove that these
rules have been adhered to, and these allegations considered
necessary ingredients on the affidavit (a).

With respect to the allegation in the affidavit, that the debt
to the Crown debtor is due " originally and bond fide and with-
out trust," it is said to have been decided in the case of the
King v. Mainwaring (b)9 that this express allegation is not
indispensable ; but it seems that this decision is only applicable
to cases in which it is evident that the debt could not be a trust
debt, or not originally due to the prosecutor of the extent, and
is not applicable to cases where the debt might been a trust
debt, and not originally due to the prosecutor of the extent (c).
It has been the uniform practice to insert this allegation in the
affidavit, and the practice of inserting the other allegation, via.
that the debt had not been put in suit, was, in the case of die
King v. Boyes (d)9 considered to be decisive of the necessity
of such allegation. And it seems perfectly clear that an ex-
tent in aid cannot be maintained for a debt which is not origi-
nally bond fide due to the prosecutor of the extent, but which
has been assigned to him for the purpose of enabling him to
use the Crown process for the recovery of it (e).

(a) West, 278. 154. 1 Anstr. 190. But a debt due

(b) 1 Price's R. 202. to the prosecutor jure uxoris is sufficient.

(c) West, 278. 2 Cro. 524. Breadman c. Coles, Hob.

(d) See Ibid. 282. 253. Parker, 271, 2.
(r) Buob.225. West, 280, 1. Nov,

y2 With

324 Extents in aid. [Ch XII. Pt. II. Sec IV

«

With respect to the allegation in the affidavit that the debt
has not been put in suit, it may be observed, that it is doubtful
on the rule of Court whether that allegation applies to the
debt which is sought to be recovered by the extent in aid.
However, it has always been usual in affidavits for extents in •
aid, to state that the debt for which the extent in aid issues,
has not been put in suit ; and the practice is the best inter-
preter of the rule. And accordingly in two different cases
lately, the Court of Exchequer has held, that if a debt has
before been sued for either, by proceeding in equity, or by
attachment in the Lord Mayor's Court, an extent in aid should
not issue for it (a).

6. As to the allegation, that the prosecutor of the extent is
less able to satisfy his Majesty, it is apprehended that the
omission of this allegation would not be material. For the
words themselves seem to have no more meaning than that
which must necessarily follow from the facts stated in the
affidavit, viz. that the prosecutor of the extent is indebted to
the Crown, and the defendant to the prosecutor of the ex-
tent (6).

In order to procure the fiat for the extent in aid, for the
benefit of the subject, the course of proceeding at present in
practice, is this (c) : a commission and inquisition in the case
of a simple contract debt to the Crown are engrossed ; the
statement of the debt to the Crown from the prosecutors being
taken in each of these proceedings from the affidavit ; an ex-
tent pro forma against the Crown debtor, and inquisition
thereon, are also engrossed, the statement of which is likewise
taken from the affidavit.; the commission and inquisition
thereon, the extent pro forma and the inquisition thereon, are
then laid before the jury, together with the affidavit ; and on
that affidavit, which is the only evidence, they find the inqui-
sitions as before engrossed. The commission and inquisition
thereon, and the extent profound, and the inquisition thereon,
with the affidavit, are then taken to a Baron of the Court or
tjie Chancellor of the Exchequer; and he indorses his initials

(«) 2 Price, 3*79. West. 282, &c. (*) See Phillip* ». Shaw, 8 Vef.Jun.

But may abandon scire facias and pro- 241.

c#ed by immediate extent if insolvency, (c) West, 288.
3 Price, 288.

Ch.XII. PtIL Sec. V.] Extents in aid. 325

on the commission, which, as before-mentioned, is the warrant
for its issuing, and signs his fiat for the extent in aid at the
foot of the affidavit, at the same time.

If the Crown debtor be a debtor by bond, then of course no
commission issues ; but the affidavit and extent pro forma, and
the inquisition thereon merely, are laid before the jury, on •
which affidavit, as the only evidence, the jury find the facts
already stated in the inquisition. For the extent in aid for the
Crown, there is usually but one fiat, namely that for the ex-
tent in aid, which is the second extent, it not being very usual
to grant a fiat for the first extent, i. e. the extent pro forma,
though that is sometimes done.

It has been the practice of late for the Barons to grant fiats
for extents in aid of bond debtors to the Crqwn, on the affi-
davit merely, without the production of the bond. The rule
of Court 3 W. and M. by which " it was ordered that one of
the Barons of the Court be attended with the bond, wherein
the party is indebted to the King, before any extent do issue
to find debts in aid, without specialty in the vacation time ; and
that no extents do issue in the term time to find any debts in
aid without specialty, but by motion in open Court," being
one of those rules which has been considered as obsolete.
But some of the Barons have lately signified that the bond
should be produced (a).

No motion in Court is now necessary in term time, in order
to procure an extent in aid for any debts, whether by simple
contract or otherwise, though the 5th of the rules 1 5 Car. and
the rule 3 W. and M. formerly required a motion in Court
for an extent in aid, for a simple contract debt (£).

SECT. V.

Form of. — What may be taken. — Motions.— Pleading. — Costs. — -

Poundage, fyc.

The form of an extent in aid is the same as that against the
Crown debtor, with the exception of the recital of the d^bt
Under an extent in aid, the sheriff is to take the body, goods,

<» j (c) West, 290. (4) Ibkl. 291. 2 Price, 15.

lands,

326 Extents in aid. [Ch.XII. Pt. II. Sec. V.

lands, debts, credits, specialties, and sums of money, of the de-
fendant, in the same manner asunder an extent against the
Crown's first debtor ; the goods, debts, &c. of the debtor of the
Crown debtor, being bound in the same manner as the goods,
debts, &c. of the Crown debtor, on the first extent; and all the
observations before made in this particular, with respect to the
first extent in chief, will apply to the extent in the second de-
gree. But with respect to the lands of the Crown debtor's
debtor, which the sheriff is directed to seize, under the extent
in chief in the second degree, they, of course, are bound merely
from the recording of the debt from the Crown's debtor's
debtor to the Crown debtor under the inquisition ; unless, in-
deed, the debt due to the Crown debtor be by judgment or re-
cognizance, in which cases the Crown of course takes the lien
of the plaintiff in the judgment, or conusee in the recognizance,
on the land of the defendant or the conusor, which they had at
the time of the judgment entered, or recognizance acknow-
ledged. But by 57 Geo. 3. c. 117. s. 1. before cited, the offi-
cer is to seize only to the amount of the debt due to the Crown
debtor. The defendant's body may be taken under an extent
in aid; but the 57 Geo. S. c. 117. s. 6. affords such defendant
relief, by enabling him to apply to the Court of Exchequer for
his discharge, on giving a month's notice to his creditor, and
making a true disclosure of his property, and the Court has a
discretion to discharge him quoad such his imprisonment.

Besides the motions which may be made against an extent
for the benefit of the Crown, and which will be considered in
the next chapter, the defendant on an extent in aid may, it
seems v move to set it aside, on the ground that no debt was due
to the Crown from the alleged Crown debtor. It may also be
moved, to set it aside the extent in aid, on the ground of the insuf-
ficiency of the affidavit on which it is founded, or that the party
fraudulently procured himself to become a debtor to the Crown,
for the purpose of using the Crown process (a), or that the pro-
secutor of the extent in aid sued it in breach of good faith,
&c. (6),

The Court will not (c), in exercise of its equitable jurisdic-
tion over extents, grant a writ of amoveas manus> to release pro-
perty seized under an extent in aid against a debtor in a more

*

(a) West, 295, 6. (c) 1 Price, R. 96.

(*) West, 297.

remote

Ch.XlI.Pt,II.Sec.V.1 Extents in aid. $27

remote degree, on the ground that the debt which had been
found on the original commission to be due to the King's
debtor has been subsequently satisfied, by the payment of bills
of exchange deposited with him for the securing that debt; if
it appear that those bills were not the bond fide property of the
.person depositing them, who thereby committed a breach of
trust; because the Court will consider, that the real proprietors
of the bills have a paramount claim on the person with whojjti
they had been so deposited, if he has been satisfied his debt by
other means.

It is provided by the 57 Geo. 3. c. 117. s. 2. that if on an
extent in aid on behalf of the Crown debtor, there be levied
and produced more than the sum due to the Crown debtor, the
overplus shall be paid into the Court of Exchequer, with the
principal sum indorsed on the writ, and the Court may, on sum-
mary application, make such order for the return, disposal, or
distribution, of any such surplus, or any part thereof, as shall
.appear proper.

In pleading to an extent in aid (a), it is apprehended that the
•defendant may plead any matter which would be a good de-
fence, as against his creditor, i. e. the Crown debtor, and which
would shew, that on the day on which the inquisition was
taken no debt was due to the latter from him. As that the
debt due to the Crown debtor is, in respect of bonds, bills, or
notes, not yet arrived at maturity [b) ; or that the defendant on
the extent in aid, gave the Crown debtor a bill for the debt
which became due after the day on which the inquisition was
taken, though it has been subsequently taken up by the Crown
debtor (c). So, in the King v. Copland (d)9 it was held, that
on an extent in aid, the defendant might plead a set-off of sums
due from the Crown debtor to himself. And the Chief Baron
there said, " as to the set-off, it is true, you cannot set-off as
against the Crown; but qu. if this is so. It is a mistake in
terms so to call it He (i. e. rtheCrpwn debtor) is to collect his
own debt, and that is the balance. It is a debt due between sub-
ject and subject" It Would seem (i), both upon principle and

(a) As to pleadings and subsequent (c) 1 Wight*. 32.

proceedings on extents in general, see (rf) Appendix to Hughes'? Case of

next chaptex. Bebb, page 204.

(6) Bebb's Case, by Hughe* Ante, (*) West, 249.
305.

7 upon

SiS DiemciauSit extrtotum. [Cb.XII. Pi. II; Sec. V.

Upon the authority of this case, that the statute of limitations
or bankruptcy, &c. might be pleaded as against a debt due to
the Crown debtor, seized under an extent The defendant, too,
sometimes traverses the debt alleged to be due from the Crown
debtor to the Crown.

The technical rules as to pleadings and other proceedings

in the -case of the Crown will be fully considered in the next

chapter. With respect to costs and poundage, &c. the obser-

' vations before made as they relate to the extent in chief, ttiay

be here referred to (a).

Equity does not in general afford any remedy to the defend-
ant on an extent in aid against the prosecutor of the extent on
the ground that he has sufficient assets to pay the Crown
without resorting to the writ, &c. (£). And as between debtors
to the Crown in different degrees no one of them has an equi-
table claim to be relieved from any part of the debt which must
consequently foil on some of the others (c). But if the King's
debt be levied on his debtors' tenants, of course, the rents are
satisfied by such levy, and the matter may be specially shewn
in an avowry (rf).

There is a peculiar or special writ of extendi facias which
is issued in the event of the death of the Crown debtor, and
is called a diem clausit exhemum ; as it recites the death of the
party.

By the writ of diem clausit extremum^ the sheriff is com-
manded to inquire, by means of a jury, when and where the
Crown debtor died ; and what goods and chattels, debts, cre-
dits, specialties, and sums of money, and what lands (i), die
said debtor had at the time of his death, &c. and to take and
seize theui into the King's hands, &c. {/)• It will be observed
that the form of the writ is in substance like that of the ex-
tent in ordinary cases; and the diem clausit extrenium and the
ordinary extent are governed in general by the same rules (g).

It seems that the diem clausit extremum is founded on the

la) Ante, 310 and 312. (/) West, on Extents. Appendix,

(h) i Ves. Jun. 241. 129. See as to the old writ of diem. cL

(c) 1 Price's Rep. 96. extr. Staundf. Prasr. Regis, 51. c, 17.

X<!0 16 Vin. Ab. 52C. tit. Preroga- (g) 2 Manning, Pr. 519. 5 Price,

tive, I. 295. If not issued within a year after

(«) As to the sale of them, see ante, the death. Ibid. F. nN. B. 253, C.

£<V& Staundf. ubi tupra,

common

Ch.XILPt.IL Sec. V.] Diem cksusit extremum. 329

common law prerogative right of the Crown to priority (a)*
However that may be, it is provided by Magna CJiarta, a 18.
that " if any one holding of us lay-fee, die, and our sheriff
or bailiff do shew our letters patent of our summons for a
debt which the dead man did owe to us ; it shall be lawful to
our sheriff or bailiff to attach and inventory all the goods and
chattels of the dead, being found in the lay-fee, to the value
of the same debt, by the view of lawful inen ; yet so that
nothing thereof shall be taken away, until there be paid mfrt&
us the debt clearly made to appear ; and the residue shall be
left to the executors to" perform the testament of the dead ;
and if nothing be owing unto us by him, all the chattels shall
go to the use of the dead, saving to his wife and his children
their reasonable parts."

Upon this statute the diem clausit extremum may be' issued
(without waiting for an executor or administrator (b) ) against
the deceased debtor's estate, in every case in which an extent
might have issued against him if he were alive (c). But in
t>rder to support the writ the deceased must have died indebted
to the King (d) ; and before the writ issues such debt must be
of record (e): but it is sufficient i£ having died' indebted to
the King by simple contract, the debt due from the deceased
be found by inquisition after his death (f). In order howeve*
to maintain this writ against the property of a deceased debtot
of the Crown debtor, it is necessary, on the wording of Magna
Charta, that the debt from the deceased be found by inqui-
sition in his life-time (g).

An executor in administering the assets must first discharge
the King's debt (h) ; nor can he retain even for his own bond
debt against the Crown's simple contract debt(i). But a pay-
ment by an executor or administrator of a bond debt is good
against a Crown debt not of record, of which the personal

(a) Vin. Ab. Prerogative, H. Hanson, Chancery Lane, Attorney.

(A) 16 East, 281. ' (h) 2 Inst. 32. 1 Chalmers' Coll. of

(c) Bunb. 119. Opinions, 28. By 9 H. 3. c 18. the

(if) Parker, .100. King's -debtors dying, the King shall be

(<?) Ibid. 93. served before the executor.

(/) Ibid. 95, 100. (i) Attorney-General v. Barnett, Ufl.

(g) Ibid. 16. 2 Price, 380. S. P. 1681, in Seek): Bingham oa Execu-

JExchcquer, A. D. 1816; Rex v. Sidle: tion, 219, note (c).

repre*-

330

Scire facias to repeal. [Ch. Xll. Sec. I1L

representative was not aware (a). And it seems funeral charges,
expenses of probate, or taking out letters of administration,
shall be first defrayed (£).

The remedy by ouster le main if the diem clausit cxtremum
be unfounded will be considered in the next chapter (c).

SECT. III.
Scire Facias, to repeal Grants, fyc.

The scire facias to repeal, or revoke, unfounded or im-
provident grants of the Crown (d), is another prerogative
process which requires consideration. The King is, generally
speaking, bound by his grants ; but this is only when they are
not contrary to law either in themselves ; or void for uncer-
tainty or deception ; or unjust as injurious to the rights and
interests of third persons (*> In these cases the King jar*
region for the advancement of justice and right, may repeal
his own grant (f). As if the King grant what by law he is
restrained from granting (g) : or the grant be obtained by fraud
or a false suggestion (h) : or be uncertain (i). So if an officer
be guilty of acts which create a forfeiture of his office (£)•

(a) 3 Price, R. 122. 1 Rol. Ab. 926.
S. pi. 1. Per Choke, if the King's
debt, in inch case, be not of record,
then it cannot be pleaded in bar ; ahter,
if it is. 21 £. 4. fol. 21. pi. 2. 1 An-
derson, 129. But see Moor, 193. A
judgment recovered against the testa-
tor, shall be preferred by the executor
to a bond assigned to the King after
testator's death. Lane, 65, aliier, if
the judgment had been recovered
against the executor. Attorney-Gene-
ral e. Hart, Trtn. 1686, in Sccio. MSS.
Bingham on Execution, 212, note.
Where, after the death of Bf a bond en-
tered into by him to A, the Crown credi-
tor is seized under an extent against the
obligee, the executor of B. may pay a
judgment creditor of Ms testator in
preference to the Crown debt ; the lat-

ter not being of record before testator's
death, Anon. 2 Rol. Ab. 159. And see
Parker, 260.

(*) 1 RoL Ab. 926, 5. pi. 1.

(c) Post, 348.

(r/) Ante, 250, as to scire facias on in-
quests of office in general : and ante,
271 , as to tare facias on extents. •

(*) See post, ch. 16. s. 1 and 3.

(/) 4 Inst 88.

(g) Ibid. 3 Bla. Com. 260. Though
if the patent be void in itself, non con-
cessit may it seems be pleaded without
a scire facias. 2 Rol. Ab. 191, S. pL 2.

(A) Ibid. Bro. Patent, 14; Peti-
tion, 11. 11 Rep. 74, b. 2 Rol. Ab.
191, T. Dyer, 197.

(i) 5 Bac. Ab. Prerogative, 602.

(*) Oyer, 197, b; 198, a; 210,211.
Ante, -85. as to forfeitures of offices.

If

Cfa.XII. Sec. III.] Scire Jhcias to repeal.

331

If a Crown grant prejudice and affect the rights of third
persons, the King is by law bound on proper petition to him,
to allow a subject to use his royal name, to repeal it in a scire
facias (a). And it is said that in such case the party preju-
diced may, upon the inrolment of the grant in Chancery, have
a scire facias to repeal it, as well as the King (b) ; as in the
instance of an unfounded patent for an invention, or wheue the
specification is incorrect (c). So in the case of a grant of a
mart or fair, &c. whereby another antient mart or fair is pre*
judiced (d). Where the same thing is granted twice the first
patentee is entitled to a scire facias to repeal the subsequent
grant (e): but the second patentee is not, though his right be
superior (f ).

The scire facias may be prosecuted in the Petty Bag Office
v in Chancery, for the patent is a record there (g). So it may be
in the King's Bench (h). A memorial is presented to the
Crown for a scire facias^ whereupon his Majesty's warrant is
obtained to the attorney-general to sue it, and the attorney-
general grants his fiat thereon (*).

On the scire facias the defendant is summoned to appear,
which affords him an opportunity of so doing, and of pleading
any defence he may have, or of demurring (k) if the matter
alleged be insufficient to repeal the grant; on which proceed-
ings are taken, as in ordinary instances of that description, at
the suit of the Crown (/)• If no defence be set up, the judg-
ment (which, if it be for the King, is that the letters patent
and the inrolment be revoked, vacated, &c.) may be either by
confession or by default, if the defendant be returned warned,
or upon two nihils (m). No costs are payable to the Crown
or prosecutor on a scire facias to repeal letters patent («).

(a) Bro. Ab. tit Scire Facial, 69,
185. 2 Ventr. 344. 3 Bla. C 260, 1.

(b) 6 Mod. 229. 2 Saund. 72. q.

(c) See ante, 193. as to patents.
(<0 Dyer, 276, b. 3 Lev. 220. 2

Ventr. 344.

(<?) 4 Inst. 88. Dyer, 137, b. 198, a.
2Rol. Ab. 191, U. pi. 2.

</) Dyer, 276, b. 277, a. 2 Saund.

(l) Ibid. 4 Inst. 88. 3 Lev.%223.

(A) 4 Tnst. 72. As to tbe form, &c.
2 Saund. 72, q. Tidd's Appendix.

(i) 2 Rich. Prac. C. P. 391, and
398. Hands on Patents.

(*) 3 Lev. 221. # •

(/) See post, ch. 1 3.

(m) Dyer, 197, b. 198, a. 2 Rol Ab.
192, X. pi. 1.

'(») 7 Term Rep. 367. Ante, 310;
as to costs in general at the suit of the
Crown.

SECT.

S32

Information. [Ch. XII. Sec. IV.

SECT. IV.

Information.

Another prerogative process is by information^ filed in
the Exchequer, at the instance of the King's attorney-generaL
This is wholly different from the criminal proceeding by in-
formation in the King's Bench, in which the object is the
punishment of some public offence. The prerogative remedy
here treated of, is in the nature of a civil action at the suit of
the Crown, and is instituted for the purpose of obtaining satis-
faction in damages for some injury to Crown possessions, or to
recover money due to, or goods claimed by, the King. The
information is not founded on any writ, but merely on the in-
timation of the attorney-general ; upon which the party is put
to answer, and trial is had as in ordinary cases (a).

Informations are, generally speaking, of three descriptions.
1. Informations of intrusion. 2. Of debt. 3. In rem.

An information of intrusion is in the nature of an action of
trespass, quare clausum J regit (J), and is usually brought against
the tortfeasor, or if dead, his executor (c), for trespass com-
mitted on the lands of the King(ti); as by entering thereon
without title, holding over after a Crown lease is determined,
taking the profits, cutting down timber, and the like (e).

The information of intrusion into land states (f)9 that the
attorney-general gives the Court to " understand and be in-
formed" that certain land (the particular species or quality of
which need not be described (g) ), ought to be in the bands
and possession of the King, in right of his Crown of England,
&c. Nevertheless the defendant contriving the disinherison
of his Majesty with force and arms to in and upon his posses-
sion, entered, intruded and made ingress, and with cattle
depastured, &c* Wherefore the said atttorney-general of our
said lord the King (who for our said lord the King in this
behalf prosecuted), for our said lord the King, prays the con-

(a) 3 Bla. Com. 261.

(b) Sav/48.

(c) S*v. 40.

. '.^ * (d) Cro. Jac. 212. I Leon. 48.

(«r) 3 Bla. Com. 261.
(/) See Co. Entr. 372, b. F. N. B.
90, I. Plowd. Com. 347. .
(#) Sav.48.

sideration

Ch.XII.Sec.IV.3 Information. S33

«

sideration of the Court here in the premises, and that due
process of law (that is a writ to the sheriff upon which defend-
ant may appear and defend (a) ) may be awarded against the
defendant in his behalf, to make him answer to our said Lord
the King, touching the premises aforesaid/9

The King may lay his venue in what county he pleases; aad
may try a question as to lands lying in any county, in the Court
of Exchequer (&).

At common law, the Crown has the prerogative right on an
information of intrusion, of putting the defendant on shewing
his tide specially, and the defendant could not rely merely
on his possession (c), which in ordinary cases is sufficient .title
for a defendant (/). If not guilty (i), or non intrusit (d) gene-
rally, be pleaded, (and the defendant cannot plead double(g), )
nothing but the mere fact of an intrusion having been commit-
ted is put in issue, and the defendant in possession would, be
immediately evicted from it; for a title for the King appears
upon the information, if no. title appear upon record-for the
defendant (A). This has, however, been remedied by the sta-
tute 21 Jac. 1. c 14. in certain cases. By that statute, when-
soever the King, and such from or under whom the King
claimeth, and all others claiming under the same title under
which the King claimeth, shall have been out of possession by
the space of twenty years, or shall not have taken tb/e profits
of any lands, tenements, or hereditaments, within the space of
twenty years, before any information of intrusion brought, or
to be brought, to recover the same, that in every suph , case . the
defendant may plead the general issue, if hp so think fit,. and
shall not be pressed to plead specially ; and that, in such c(ises
the defendant shall retain the possession he had at the time of
such information, exhibited, until the title be tried, found, or
adjudged for the King. ,

(a) In 6 Com. Dig. 65, tit. Prerog. (c) Dyer,3$8,b. 4*n*r.l66/ How
D. 73, it is laid down that the process this is on a traTOM of offiee, potty
upon an information shall be a venire cb. 13* s. 3. div. 3.

distringas, afterwards a writ oat of Chan- (a*), See 1 East, 244.

eery directed to the treasurer and barons. (*) Sav. 66.

4 Inst 110. (/)Sar. 4.

(b) 1 Ventr. 17. Sav. 10. Com. Dig. . (g) Parker, R. lf 16.
Prerog. D. 85. « Price, IK). (A) 4 Inst 116.

« And

334 Information. [Ch.XII. Sec.IV.

" And be it farther enacted, That where an information of
intrusion may fitly and aptly be brought on the King's behalf,
that no scire facias shall be brought, whereunto the subject
shall be forced to a special pleading, and be deprived of the
grace intended by this Act"

It is, in general, sufficient for the defendant to shew a mere
legal title to possession only ; and it will suffice if he shew a
right to possession concurrently with the King, as where the
defendant pleaded that she had a jointure of a third, without
answering to the residue (a). The defendant must, of course,
plead a sufficient legal title (b) ; otherwise, the Attorney-General
may demur: though it is said, that if instead of so doing,
lie take issue on a fact stated in the plea, which is found
against the King, the defect cannot afterwards be taken ad-
vantage of (c).

The King may traverse all the different facts stated in the
defendant's plea (d) ; and if the plea allege a tide, which avoids
the possession in the King supposed by the information, the
King need not, at least where he is entitled by matter of record,
maintain the information, but may traverse the title alleged by
the plea (e).

The Crown has the privilege of waiving his count, and de-
claring de novo, even after plea or demurrer ; but only, it seems,
during the Term in which the original declaration was
made (/), though the King may amend at any time, paying
costs (g).

The judgment for the King in an information for intru-
sion is, that the defendant be amoved from the posses-
sion; and for damages, in case damages be found, for any
particular trespasses committed by the defendant, as cutting
trees, &c. (A).

After

(a) Mo. 370, 376. 5 Bac. Ab. 567, (/ ) Bro. Ab. Prerog. pi. 13, 15; Va-

Prerogatire, E.7. riance, pi. 79. Vio.Ab. Prerog. 25.

(*) SaT. 34, 48. Dyer, 838. Vaugh. 62, &c

(c) Dyer, 239, b (*) Ibid« V"* Ab« 10 Mod* 20°. 3

(<Q Sav. 19. Anstr.714.

(e) Ibid. 61. Vaugh. 64. 16 Vin. (A) Sav. 35, 49. In Hardr. 460,

538. 6 Com. Dig. 74. See post, ch. 462, it is also said " that the judgment

13. s. 3. div. 3. Traverse of office; shall be quod capiatur pro fine, and there-

PJemdiags on Extents. upon there shall be an injunction for the

possession ;

Ch. XI I. Sec IV.] Information. 335

*

After judgment in an information for intrusion, execution
shall be sometimes by injunction, or it may be by amooeas ma-
nam ; and, thereupon every party to the information, or claim-
ing under him, shall be removed from the possession. But
a stranger to the information shall not be debarred of his en-
try, for no judgment of seisin is given, nor does an habere facias
seisinam go (a).

2. The Information of debt is in effect and substance the King's
action of debt, and is usually brought in the case of forfeitures
to the Crown, upon the breach of a penal statute, enacted for
the support of the revenue (b). For monies due to the Crown on
contract, process of extent is the usual remedy.

Where the King is entitled to any part of a penally, for
which a qui tarn action is brought, the defendant cannot obtain
leave to compound till the consent of the law officers of the
Crown be given, in whatever stage of the cause the application
to compound is made (c). It appears, that by a standing privy
seal, the Commissioners of the Treasury, High Treasurer,
Chancellor, Under-Treasurer, Chief Baron, Barons of the
Coif, and Attorney-General, were respectively empowered to
give licence to compound (d). And the Court, in the exercise
of their discretion to grant leave to compound, will refuse the
indulgences in cases of collusive attempts to defraud the
Crown (*)• Where leave is given to compound a penal ac-
tion, the moiety of the Crown is to be paid into the hands of
the Master (/), and this is usually done before the rule is
drawn up (g).

3. The Information in rem is, where any goods are supposed
to become the property of the Crown, as derelict, and no man
appears to claim them, or to dispute the title of the King; or
where goods are forfeited for non-payment of customs, &c. (h).

posaeakm ; for the King h supposed In on this subject, Ibid.

possesion." And see 6 Con. Dig. 67. (e) 2 Bla. R. 1157.

fit. Prerogative, D. (D.) 77. (/) 4 Burr. 1999.

(a) Sat. 35. Hardr. 450, 462. (g) 1 Manning, P. E. 80S. When

(*) S Bla. Com. S61. Crown shall hare half the carta the

(c) 1 Taunt. 103. * Ibid. 813. 5 plaintiff agreed to take. 2Taurit.913.

IbN.268. (*) 3 Bla. Com. 262. Glib. Es-

(4) QUb. Exoheq. 137. See farther cheq. 180.

The

SS6

Quo Warranto. [Ch. XII. Sec- V.

The 13th chapter of Chief Baron Gilberts " Treatise on the
Court of Exchequer/' contains so able and so ample an expla*
nation of this subject, that no apology need be offered for refer-
ring the reader to it for information (a).

SECT. V.

Qiio Warranto.

The writ of quo warranto is an antient and high pre-
rogative remedy, in the nature of a writ of right for
the King, against him who usurps or claims (i) any fran-
chises or liberties (c), to say by what authority he claims
them (d). It is also sustainable where any new jurisdiction
or a public (e) trust is executed without authority ; though it
is no usurpation on a franchise of the Crown (f). Nor is it
material that the franchise is of such a nature that it cannot
be seized into the King's hands or held by him, though judg-
ment be given for Ins Majesty, because the defendant may

(*) And sec Parker's Rep. 57, 69,
196, 7. The Court of Admiralty, like
the Exchequer, proceeds in rem: and
the Crown may b? bound by a judicial
sale therein. See 3 Price^,37.

(6) There tnnst be an uter as well as
a claim of a franchise. 5 T. R. 85. 4
East, 537.

(c) As waifs and estrays. Co. Entr.
598, 541, 544. Goods and chattels of
felons, and deodands, Ibid. 529, 549.
Fines, amerciaments, and issues, Ibid.
55t, b. 561, a. A park, warreo, &c
Ibid. 561. Wreck, 2 Rot. Ab. 305,
1. 35. For taking lastage or ballotage
of ships, 1 Sid. 86. So it lies for fran-
chises, which cannot be seized into the
King's hands ; for the party may be
ousted of them ; as for a Court Baron,
Sfeo Warranto. 14 Treby'i argument.
Yel. 190. A Court Leet, or Borough
Court. Co. Entr. 527, b. 544. A fair,
market, toll, fee. Co. Entr. 527, b.
544, 561, a. Information in the nature

of quo warranto lies against any one
claiming an exclusive ferry over a pub*
lie river, but not for taking money of
passengers. Stra. 1161. 'So it lies lor'
claiming to be a corporation. Co. Entr.
537,b. To choose bailhTs orotberoAcers,
Ibid. 527, b. 537, b. Coroner, constable*
clerk of a market, justice, &c. Ibid.
528, a. 537, b. 551, b. For exercising
the office of steward of a Court Leet,
but not of a Court Baron. Stra. 621.
It lies for the office of constable, Ibid.
1213. So it lies upon a claim of ex-
emptions; as to be exempt from the
government of the mayor, justices, &c.
Co. Entr. 528, a. Proceedings against
the City of London, in the time of
Charles 2. See 2 Burnett's Hist. 925*
ed. 1725. 2 Selw. N. P. tit. Quo W<*.
2 W. and M. sees. 1. c 8.

(if) 2 Inst 282. 9 Co. 28, a. Yefr.
191. Com. Dig. tit Quo War. A.
(e) See 6 Com. Dig. tit. Quo War. B.
(/) Stra. 299, 836. Ld. Raynu 1559.

* still

Ch. XII. Sec. V.] .Qko Warranto.

357

still be ousted (a). It also lies in the case of a forfeiture of
m office by abuser, &c. (b).

in case of judgment for the defendant, he shall (c) have an
allowance of his franchise; but in case of judgment for the
King, for that the party is entitled to no such franchise, or hath
disused or abused it, the franchise is either seized into the
King's hands, to be granted out again to whomsoever he shall
please; or if it be not such a franchise as may subsist in the
hands of the Crown, there is merely judgment of ouster,
to turn out the party who usurped it (d). There is also
judgment oi capiatur pro fine, though the fine is nominal.

This writ which must be brought before the King's Justices,
at Westminster (e\ has now fallen into disuse, principally on
account of the length and complicated nature of the process(J\
and the circumstance of the judgment on the writ being final
and conclusive, even against the Crown (g). In its place has
been substituted the information in the nature of a writ of quo
warranto, which is filed in the King's Bench by the attorney-
general (A); and lies also in the Exchequer (i) ; and wherein
the proceedings are more speedy and less conclusive (4). The
Court, however, will not extend this remedy beyond the limits
prescribed to the old writ ; and as that could only be prose-
cuted for an usurpation on the rights or prerogatives of the
Crown, so an information in the nature of quo warranto, can only
be granted in such cases (/) ; and upon this principle, the
Court refused to grant an information to try the validity of
an election to the office of church-warden. The quo warranto

(a) Ante, 335, note(i).
(6) 2 IotL 486. 3 Bla. Com. 262.
Ibid. 263.
(e) 3 Bla. Com. 263.

(d) Cro. Jac. 259. 1 Show. 280. Co,
Eotr. 530, 539, a. Rast. Enlr. 540, b.
3 Bla. Com. 263.

(e) 3 Bla. Com. 263. Com. Dig.
Stuo Warranto % A.

{/) See Com. Dig. tit Sao Warranto,
C. 2. The proper course io the Exche-
quer seems to be, to issue a writ to the
sheriff, directing him generally to in-
quire into usurpations of franchises ;
upon which the sheriff takes an inqui-

► •*

sition, 6nding the particular usurpation
intended to be drawn in question. Tha
defendant traverses or demon to the in*
qnisitioD, and proceeds as in other
cases. 2 Manning, Pr. 5 10. Defen-
dant cannot plead not guilty, or non
utvrpaviL, but must justify or disclaim,
12 Mod. R. 295. 10 Ibid. 296.

(g) 1 Sid. 86. 2 Show. 47. If Mod.
225.

(*) See 3 Burr. 1812. 1 Bla. Rep.
579.

(a) 2 Manning's P. Exes. 509, 10.

(k) 3 Bla. Com. 263.

(/j 4T. R.381. Stra- 1196.

< inforoatioB

338

Mandamus.

rCh.XII.Sec.VL

information is now considered merely in the nature of a civil
proceeding (a), and is the usual remedy in the case of corpo-
ration disputes between party and party, without the inter-
vention of the prerogative, but by leave of the Court, in
pursuance of the statute (6), which permits an information iir
nature of quo warranto to be brought with leave of the Court,
at the relation of any person desiring to prosecute the same
(who is then styled the relator) against any person usurping,
intruding into or unlawfully holding any franchise or office in
any city, borough or town corporate ; provides for its speedy
determination, and directs that if the defendant be convicted*
judgment of ouster (as well as a fine) may be given against
him, and that the relator shall pay or receive costs, according,
to the event of the suit (c).

SECT. VI.

Mandamus.

The writ of mandamus (d) is another high prerogative
writ, issuing out of the Court of King's Bench, as the pe-
culiar superintendent of inferior jurisdictions and authorities,
directed to any person, corporation or inferior Court of judica-
ture, requiring them in the King's name, to do some particular
thing therein specified, which appertains to their office, situa-
tion or. duty, and which is consistent with right and justice (e)~
The object of the writ is not to supersede legal remedies, but
only to supply the defect of them. The only proper ground

(a) 2T.R.484.

(*) 9 Ann. c 20. See 4 and 5 W.
3. e. 18. Selw. N. P. 3rd and 4th ed.
tit. Quo Warranto,

(c) This statute, with regard to costs,
extends only to cases where the title of
'a person to be a corporate officer, as
mayor, bailiff, or freeman, is in ques-
tion; but an information to try the

right of holding a court is not within it,
bat stands upon the common law only,
and being a prosecution in the name of
the King, no costs are given. 1 Burr.
402.

(d) See the points on this subject ably
collected in Selw. N. P. tit. Mandamus.

(0 3 Bla. Com. 110.

of

Ch.XIIL3 Redrew from Crown. 339

of the writ is a defect of justice. It is the absence or want of
a specific legal remedy, which gives the Court jurisdiction (a).
There must however be a specific legal right, as well as the
want of a specific legal remedy, in order to form an application
for a mandamus (b). The writ is grounded on the oath of the
party injured shewing his right, and the denial of justice below,
whereupon the party complained of is directed to shew why
the writ should not issue (c). This being substantially a civil
remedy for the subject, and the King's name being only nomi-
nally used, no further mention of it will be here made.

CHAP. XIII.
Of obtaining Redress from the Crown.

The principle or maxim, that the King can do no wrong has
been before explained (d). It does not mean that the subject is
without remedy for every act of the Crown. The King is not
indeed personally chargeable, nor can he be subjected to the
usual common law proceedings, which may be instituted
between subject and subject For all judicial proceedings and
writs must be in the King's name as the fountain of justice :
and it would be absurd that the King should command or re-
quire another to command himself: independently of its being
contrary to the constitutional idea of the King, to imagine that
he is subject to the controul and command of any of his own
courts. Whatever therefore may have formerly been con-
sidered on this subject, there can be no doubt that at all events
since the reign of Edward 1. the Crown has been free from
any action at the suit of its subjects (?) : and on this principle

(a) Per Ld. EUenborougb, 3 Sehr. (<2) Ante, 5.

N. P. tit. Mandamus, L (e) 1 Bku Con. 055. 4 Co. 55, a.

(A) 8 East, 219. Con. Dig. Prarog. (D.) W; Action,

(c) See 3 Bla. Cool lit, 264. (C) 1. Staundf. Prerog. 42, a.

z2 it

340 Petition of Right. [Ch. XIII. Sec. L

it is that no one can vouch for the King, for that is in the
nature of an action ; and that if a fine be levied by the King
of lands, it should be by render and not by writ of cove-
nant (a).

With respect to personal injuries, the inviolability of the so-
vereign, and the improbability that any injuries of that nature
should be committed by the King, have combined to establish
it as a clear maxim in law, that he cannot be guilty of them*
The law will presume that the subject cannot have sustained
any such personal wrong from the Crown, because it cannot
afford any adequate remedy : and want of right and want of
remedy are the same thing in law (A). With respect however
to injuries to the rights of property, as such injuries may be,
and generally are, committed through the medium of the
King's agents, and by misinformation or inadvertence, the law
has furnished the subject with a decent and respectful mode
of removing the invasion by informing the King of the true
state of the matter in dispute : and, as it presumes that to
know of any injury and to redress it are inseparable in the
royal breast, it then issues as of course in the King's own
name, his orders to his judges to do justice to the party ag-
grieved (c).

The modes of proceeding against the Crown to recover lands
or personal property are of three descriptions : 1. by petition :
2. by monstrans de droit, manifestation, or plea of right : $.
by traverse of office.

Sect. 1.— The petition de droit, or petition of right, is an
antient common law remedy for the subject against the Crown
and is said to owe its origin to Ed. 1. (d).

This mode of proceeding is peculiarly suited to the dignity
of the sovereign ; and being instituted for the purpose of pre-

(a) H. 3. H. 6, 3 and 4. action, and conld not plead the invalid

(A) See Bac. An. Actions, B. Quod command of the Ring. Bac. Ah. Pre*

Remcdio dtstituitur ipsa re valet si culpa rogative, E. 1. Same principle at to

adrit. 6 Co. Rep. 68. If the King lands. See post, 342.

were to command a third person to (r) 3 Bla. Com. 955.

commit an injury on a subject, of course (rf) Bro. Ab. tit Prercg. 2. Fits. Ah.

such third person would be liable to an Error, 8. 3 Bla. Com. 856.

serving

Ch. XIII. Sec. K] Petition q£ Right. 341

i

serving entire the respect and submission due to the King,
can be adopted only against him, and does not lie in the case
.of the Queen, or the Prince (a). But where the King is con-
cerned, and a petition is the proper remedy, it is immaterial
whether his Majesty be seized of the property in question in
his own or another person's right (4).

It will be material to consider, 1st, when a petition is the
proper remedy > and 2ndly, the mode of proceeding upon it

1 , Antiently a petition was the necessary course of proceeding
in numerous cases : but the delay and expense attending the
proceeding induced the legislature to afford the subject a much
more summary method of interpleading with the Crown. This
was effected by extending and rendering almost universal, the
remedies by c monstrans de droit and ' traverse of office' which
will be considered in die ensuing sections. Whenever there-
fore either of such remedies can be adopted, that by petition,
though it be sustainable (c), would not be adopted and is irre-
levant (d). In every case however in which the subject hath a
right against the Crown, and yet no monstrans de droit or tra-
verse of office lies, a petition is the birth-right of the subject,
and is sustainable at common law (i), and this not only in the
case of real property, but of chattels real or personal (y ), or
unliquidated damages (g).

In the case of inquisitions or offices finding that property
belongs to the King (A), either the monstrans de droit) or tra-
verse of office, may in almost every instance be adopted; and
a petition would not be the better remedy. And here we may
notice the wise precaution of requiring that matter of record
shall in general be necessary to pass property from the sub-
ject to the King ; the consequence being that claimants a*re
thereby in most instances let in at once to traverse such matter
of record, without being driven to circuitous and expansive
proceedings (i ).

(«) 1 H. 4. f. 7. Staundf. Prerog. (<?) Ibid. Com. Digr. Prerog. D. 78.

75, b. (/) Staundf. Pnrrosr. 72, b.

(b) Ibid, and 10 H. 7. fol. 4. (g) Year Book, SS Ed. 3,5.

(c) Bro. Ab. Trarers, D. Office, pi. (h) Ante, 940. t
18. (i) See a Manning, Pr. 579.

(d) Staundf. Pre. 74, a.

"To

342 Petition of Right. [Ch. XIII. Sec. L

" To declare specially," says Staundford (a), "where a petition
lietfa and where not, it were a long matter to intreat o£ But
generally and by general rules* a man may briefly declare it;
that is to say, in all cases where the party hath a right against
the King, and yet no traverse or monstrans de droit will serve,
there he is driven to his petition : as for an example, where
the King is entitled by double matter of record (()• Like law
it is, where the King is entitled by a record net traversable*
as take the case: the King recovered by assent and without
title, a stranger that hath good title shall not falsify his reco-
very by a traverse or monstrans de droit, 'but is driven to his
petition. So it is where the King recovereth by erroneous
process, the party shall not have a writ of error (c) until he
have sued by petition for it So likewise it is if lands
are holden of me by knight's service, a stranger brings a
preeeipe in capite of those lands against my tenant and recover-
ed by default, although by this recovery I am not put out of
possession of my seignory, but that the tenant holdeth of me
as he did before, and also of the King by collusion; yet in this
case if the recoverer die, his heir within age,- and the King
seizeth the ward, I am driven now to my petition for the ward,
for this is another thing than ever I was seized of. Also it is
a general rule, that where a stranger that hath title cannot en-
ter upon a common person, but is driven to his action, there
he can have no remedy against the King, but only a petition*
As take the case to be : it is found by office the King's tenant
in chief died seized, his heir within age, where indeed the said
tenant had nothing but by disseisin done to me, and I suffered
him to die seized without any claim made ; in this case I get
no remedy by monstrans de droit or traverse, but am driven to
my petition. And so in all cases like where mine entry should
be tolled if the lands were in the hands of a common person*
Also where the King doth enter upon me, having no title by
matter of record or otherwise, and put me out and detain the
possession from me, that I cannot have it again by entry with-
out suit, I have then no remedy but only by petition. But if I be

(a) Pncrog. Regis, ch. 22, fol. 74, a. in the case in 12 East, 96.

to 75, b. And see Com. Dig. tit. Prerog. (b) See now 2 and 3 Ed. 6. c. 8. s. 7.

X), (D.) 78. 5 Bac Ab. 571, tit. Pre- Post, 352.

rogatfte, E. 7. Staundford was fre- (0 Post, s. 3. div. 7 j as to a writ of

queutly cited by the Counsel and Court error against the King.

suffered

CiwXIIL Sec. L] Petition of Right. 349

suffered to enter, mine entry is lawftil, and no intrusion; or if
the King grant over the lands to -a stranger, then is my petition
determined, and I may now enter or hove my assize by.orde*
of the common law, against the said stranger, being the King's
patentee (a). And a great difference is between this case and
the case where the King is entitled by double matter of record (b)
or such like ; for in these (qu. 'latter*) cases, notwithstanding the
.grant made over by his Highness of the lands to another, yet
am I driven still to my petition to the King, and have no otber
remedy: but it is not so in this case (that is, when the King
having no right, has granted away the property). And the
reason of this diversity is, because that when his Highness
eeizeth by his absolute power, contrary to the order of his
laws, although I have no remedy against him for it but by
petition, for the dignity's sake of his person ; yet, when the
cause is removed, and a common person hath the possession*
then is my assize (c) renewed ; for now the patentee entered
by his own wrong and intrusion, and not by any title that the
King giveth him, for the King had never title or possession
to give in that case, and therefore not like the other cases be*
fore, where the King hath the lands by the order of his laws :
that is to say, by double matter of record, or such other like.
Like law it is if I have a rent charge out of certain land, and
the tenant of the land enfeoffeth the King by deed inrolled;
now during the King's possession, I must sue by petition* -but
if his Highness enfeoff a stranger, I may distrain for my reftt
on the stranger ; and so it is in all the cases before, where a
man may have his traverse or monstrans de droit, if the lands
be once out of the Kings hands, the party then may have
his remedy that the common law giveth him : for in all these
eases the petition did lie only for the dignity of the King's
person, and not for the right that his Majesty had to the pos-
session of the thing. But if the King purchaseth lands holden
of me, learn what remedy I may have for my seignory during
the King's possession ; for Wilby saith (d) that. I have no re-
medy in that case, and if his Highness make a feoffment of
these lands to hold of himself yet I cannot distrain for my

(a) 4 Ed. 4. f. 22. 24 Ed. 3. f. 65. mam!.
1 0 Ed. 3. f. 2. See ante, 339, note (<?) ; (6) See ante, 341 , note (6).

that a wrong-doer cannot justify under (c) Ejectment,

the King's unfounded claim or com- * (</) Aisize, 124 ; 20 Ed. 3.

seignory

$** Petition of Right. [Ch XlU.SttX

seignory like as I might do in the case of the rent charge
before, because there cannot be two seignories of the same
land, bat am driven to my petition in this case ; for the King
upon this feoffment, by order of his laws, should have renewed
the seignoiy in me : that is to say, to have made the feoffee to
hold of me of whom it was held before. And so it hath been
used always where his Highness hath lands by forfeiture of
treason (a), holden of a common person, if he make a feoffment
of those lands it must be to be holden of those that they were
holden of before. And so it is where the time is devolved to
his Highness for a mortmain; but that is given by the statute..
de religiosis. Also if the King disseise my tenant during this
possession, I have no remedy for my seignory but only by pe-
tition : and if the King enfeoff my tenant to hold of his High-
ness, yet have I no remedy for my seignory (b) but only by
petition. But if one hold certain lands of me which are falsely
found by office to be holden of the King in capite, and the King
seizeth them, and enfeoffeth my tenant thereof to hold of his
Highness; in this case I may now distrain for my seignory
and am not out of possession. And the reason of the diversity
is this, because that in the last case my seignory was never
suspended, but evermore had its being, and that notwithstand-
ing the office ; for it did not appertain to me to traverse the
office and discharge the tenure : but that matter was left to my
tenant to do, and seeing he did not, he hath charged himself
of a tenure by way of collusion to the King as well as to me t
but it is not so in the other case. Also it is to be noted that
if the King seize lands by title of wardship and make a feoff-
ment thereof, in this case the heir need not sue his petition,
but may have a scire facias to repeal the said letters patent,
because the King was deceived in his grant. For there the
King himself is in possession still till livery be made; so the
heir there hath no cause to sue by petition, and the King is
bound to deliver it unto him in whose right he seized."

A petition seems also to be the only remedy where the King
does not pay a debt, as an annuity or wages, &c. due from

{a) Where an estate is forfeited to not vested in the King. Sir W. Jonas, 78.
the King by attainder, &c. none can (b) That is as against the King only

sue to the King by petition before office in this case, quctr*. See ante, 342, and

Jtaad, for till office found the estate is note («).

him

Gh. XIII. Sec. I.] Petition qf Bight. 34*

him (a), or in the case of unliquidated damages, occasioned by .
any breach of contract with the King himself; or incase the
King, without any office, take or detain a subject's goods. A
quare impedit against the King must also be by petition (b) ;
and it seems to be the only legal remedy on the reversal of an,
outlawry, or an extent, &c. on error, where the monies have
been accounted for in the Exchequer, and have reached the
hands of the Crown, if the Court cannot interfere (c).

Sdly. As to the mode of proceedings— It is the very essence
of the K petition* that it should contain .nothing of a mandatory
nature. The petition is, however, substantially, as well as no-
minally, a petition of right, as the prayer of it is grantable,.
ex debito jwtiti& ; and Magna Charia says, " nutti vendcmut,
ntdli negabimusy aid differ emus justitiam vel rectum (d)."

The petition must be carefully drawn up, and must state the
whole of the title or titles, or claim of the Crown, " for if it be
found by the writ of search, that any title of the King be omit-
ted, the petition shall abate ; and the reason of it is, because
that if on this suit of petition the King take an issue with the
party which is found against him, his highness then shall be
concluded for evermore to claim by any of the points con-
tained in the said petition (e)" And of course the plaintiff
or suppliant must state his own tide at length. Thus if a di»*.
seisor of lands, which are holden of the Crown, dies seized,
without any heirs, whereby the King is prima* facie entitled to-
the lands (f), and the possession is cast on him either by in*
quest of office, or by act of law without any office found; now
the disseisee shall have remedy by petition of right, suggest-
ing the title of the Crown, and bis own superior right before
the disseisin made (g).

The petition may be to the King in Parliament, or in any

(a) Lord Somen, Arg. 11 St Trial Magna Charta binds the Crown, see

81, 85. Com. Dig. Prerog. D. 78. Vin. Ab. Statutes, E.

{*) 43 Asa. 272. pi. 91. H. 8. H. 4. («) Per Settle, J. Year Book, 9 Ed.

fol. 21. 2 Manning's Pr. 579. 4. fol. 51. Staundf.' Prerog. 73, b.

(c) See Staundf. Praerog. Regis, 75, Finch L. 256. 3 BJa. Com. 256.

b. 76, a. Year Book, T. 34 H. 6. fol. (/) See however 12 East, 96.

51. 2 Manning, Pr. 624, scd vide I H. (g) Bro. Abr. tit Petition, 90. 4

?•*>!. 3. Rep. 58. Post, 352.

WSw 3 Manning, 578. That

of

346

Petition of Right. [Ch.XIILSec.I.

of the King's Courts of Record (a), atid is usually in the trea-
surer's remembrancer's office (6).

When the petition is sued in parliament, " it may, says Staund-
ford (c), be enacted, and pass as an Act of Parliament, or
else to be ordered in like manner as a petition that is sued
out of the parliament which is in this manner* First, after
the petition is indorsed it shall be delivered to the Chancellor
of England, and then shall there be a commission (d) awarded
out of the Chancery, to find ,the right or title of him that
sueth the petition ; whieh being found by inquest then he may
interplead with the King and not before. And if upon the
commission no title be found for the party but only for the
King, yet the petition shall not abate, but the party shall have
a new commission in that case, for the petition is but as void
until the party's title be found by office, and is not to be said
depending until that time (e). And note that when the peti-
tion is indorsed the party must follow and pursue the s$me
according to the indorsement, or otherwise his suit is void ;
beeause the indorsement is his warrant therein. And there-
fore some petitions be indorsed and sent into K. B. or C. P.
and not into Chancery, and that groweth upon a special con-
clusion in his petition, and a special indorsement upon the
same, for the general conclusion is " que le roy ley face droit et
reasoitf' which is as much as if he had prayed restitution of
that that he sueth for: and there, upon such a general con-
clusion, die indorsement is * soit droit fait al partie (f)nr
which ever is delivered unto the Chancellor as is declared* But
if the conclusion in the petition be special, and the indorse-
ment special, then they shall proceed according to the said
special indorsement; as lor an example, the King recovereth in
a quare impedit, by default against one that was never sum*»

(a) Staundf. Prserog. Regis, 72, b.
Com. Dig. Prerogative, D. 80.

(b) 2 Manning, Pr. 578, n. m. Ibid.
Appendix, 253. Jones, IER, Memoran-
da, tit. Error.

(c) Prerog. Regis, ch 22. fol. 72, b,
to 74, a. And see Bro. Ab. tit. Peti-
tion. Fitz. tft. Traterse. 1 1 St. Tr. 149.
5 Bae. Ab. 572. tit, Prerog. E. 7. Com.
Dig. Prerog. D. 80.

(<!) Rast. Entr. 461. The Commis-

sion is not necessary if the Attorney-
General confess the suggestion, Skinner,
R. 608. Where office is found to en-
title the Crown, the party may sne a
petition without any inquisition for him
Com. Dig. nbt supra* Moore, 639.

(e) M. 3 H. 7. fol. 13.

(/) This is now the usual indorse-
ment. Lord Somen, Arg. 11 St. Tr.
149.

moned.

Ch. XIII. Sec. I.] Petition of RigM.

947

raoned. In this case the patty dial lost cannot have a writ of
deceit until such time as he have sued the King by petition
for the said writ ; and if in his petition he conclude and pray
that the King do him right generally, now the justices upon
whom the recovery was had, cannot examine the deceit with**
out an original writ directed unto them for that purpose ; and
yet before he obtained that writ his right shall be inquired of
by commission ; but if he conclude specially in his petition,
that is to say, please his Highness' to command the justices to
proceed to the examination; which petition is endorsed ac-
cordingly, then may they do it without any such writ or com-
mission to be sued (a). So ever the following and pursuing
of the thing must be according to the indorsement; for how-
ever the conclusion in the petition be, the indorsement may
be always as it shall please the King ; and according to that
the party must pursue it And note that in every petition
where the King hath granted the land over to another, a scire
facias must be awarded against the patentee, like as it shall
be where a traverse or monstrans de droit is tendered, which
patentee if he have not the whole fee simple, but that there is
a reversion in the King, or that the King is bound to warrant
when he appeareth upon the scire facias, he may have a writ
of search (b) to be awarded into the treasury, to search what
they can find for the King's title (c). But query, if search
shall be granted upon a traverse or monstrans de droit,. because
the statute of 14 E. 3. c. 13., that cancerneth search, doth
speak only but of a petition. But to that it may be said, that
at the time of making of the statute there was no traverse
given {d). And Skrene sayeth, that search shall not be granted

(a) M. 10 H. 4. fol. 4.

(4) See 2 and 3 Ed. 6. c. 8. s. 13.
Where a petition disaffirms Che King's
possession! there ought to be four writs
of search directed to the treasurer and
chamberlain of the Eachequerj but
writs of search are not necessary,
where the petition affirms the King's
possession : as, upon a petition of a
right of dower. Moor, R. 639. Co. Lit.
77, b. The writs of search issue upon
the suggestion of the Attorney-General,
that there are in the Treasury several
records, charters, deeds, muniments,&c.

touching the King's right to the estate*
in question. Rast. Entr. 463, a. Ld.
Coke says, " Upon the petition there
be four writs of search, and every one
must have forty days before the serv-
ing." Co. lit. 77, b.

(c) H. 9 Ed. 4. fol. 51.

(d) By the 9 and 3 Ed. 6. c. 8.sv 13.
upon every traverse under that Act in
lieu of the petition to which the party
was put at common law, there shall be
two writs of search instead of four, as
on a petition. See Co. IiU 77. b.

but

348 Petition of Bight. [Ch.XIII. Seal.

but when one sueth by petition. And note also, that in every
petition whether it be sued in the parliament or elsewhere,
or whether the lands remain in the King's hands, or not in
the King's hands, but be granted over, yet writs of search
shall be awarded to search the King's title ere the party shall
interplead with the King. Also it appears (a), that upon a
petition the King's patentee had aid of the King : it also ap~
pears that if the King be not entitled by any matter of record,
but without any title do enter into my land whereby I sue by
petition unto his Highness ; that in this case no search shall
be granted, because no title can be intended for the King in
such case."

On the return of the inquisition, the Attorney-General may
plead in bar or demur : and an issue of fact or law being
joined, the merits may be discussed and determined by a
jury (6), or the Court, as in ordinary cases between subject and
subject.

If the subject recover lands, &c. the judgment follows as a
matter of course ; and the party need not sue to the King for
die same (c). It is that " the hands of the Crown be re-
moved, and possession restored to the petitioners :" whereby
the King is immediately, by operation of law, out of pos-
session (d). Indeed the amoveas manus or ouster le main is
the end of every suit where a man comes to interplead with
the King, for without that judgment the land will still remain
in the King's possession (e). But in all judgments or decrees
in equity against the King or respecting his rights and claims
the clause " salvo Jure domini regitf' is always inserted, and
I* expressly required by the statute 2 and S E. 6. c. 8. s. 1 *.(/).
But as the Admiralty Court proceeds in rem, the Crown is
t>otffid by a judicial sale of a vessel by order of that Court,
though it had a prior title by forfeiture which was not dis-
cussed (g). If on the petition money be recovered, the writ
of execution for the subject is directed to the treasurer and
chamberlains (h). And it is said they are personally liable if

(a) 16 E. 4. f. 3. And see Rex v. (rf) 2 Inst. 695. Rast. Eatr. 463.

&n$th, Assig. Whitehall, Jones, IER, Pinch, 459. 3 Bin. Com. 257.

AMenda, tit. Exalte, S Manning, Pr. (r) Keilw. 158, a. pott, 349.

579, notes. (/) Finch, L. 459, 460.

« (4) At*o the Venteft, see post, 348, (g) 3 Price, R. 97.

•nd*e<w&dlr.4t - - (A) Vid. Reg. Brey. 193. Plpsrd.

(c) SUundf. Prerog. 82, o. 3*2, 459. f Manning, Pr. 579.

4hey

Ch.XIILSecJ.] Petitbn Qf Right $f?

they do not satisfy the suppliant's demand out of the first ^nonjfcs
that come to their hands by* virtue of their office (a). .

The suppliant may be nonsuited though a verdict be pressed
for (4). It has been said that this suit being as it were in the
nature of a writ of right the subject cannot have a fresh peti-
tion if he be nonsuited (c) ; but the law seems otherwise on »
this point (d)*

. On the subject of the judgment of ' ouster le main,' ' amoveas
manusj* or c that the King's hands be amoved,' Staundfprd (e)
has the following observations. " Ouster le main is the judg-
ment that is given for him that tendereth a traverse, or snejth
a monstrans de droit, or petition ; for when it appeareth upon
the matter discussed, that the King hath no right or title to
the thing he seized, then judgment shall be given in the Chan-
cery, that the King's hands be amoved : and thereupon amo-
veas manum shall be awarded to the escheator, which counter-
vails as much as if the judgment were given that he should
have his lands. And this judgment sometimes is given in the
King's Bench, and not in the Chancery; and that is in case
where the parties descend to an issue, then for the trial thereof,
they of the Chancery must award a venire facias returnable in
the King's Bench at a certain day, at which day notwithstand-
ing that the sheriff return not the writ yet the alias venire facias
shall not be awarded out of the Chancery, but of the Kingfs
Bench : for there and no where else it is recorded quod vice- '
comes non misit breve. And when the issue is found for the
party they of the King's Bench shall give judgment and awa$d
an ouster le main without suing for the same in the Chancery.
Also* note that sometimes there goeth an ouster le main as well
to the King's patentee as to the escheator ; and that is wh^re *
the King hath granted the thing that be seized to any othqr-
But notwithstanding that there go such writs of amoveas mam/fn
both to the escheator and to the party ; yet the Kinjpis out pf
possession as soon as judgment is given in the Chancery; npt

(e) Vid. Reg. Brer. 193. Plowd. monstrans de droit is peremptory. 4

38S, 459. ft Manning, Pr. 579. F. lien. 6. 1ft. pi. 9. '

N. B. 191. (<Q See 4 Hen. 6. 19. pL &> Bnv*b.

(6) 11 Hen. 4. 52. pi. 30. Fits. Pe- Nonsuit, IS. And see Fits. Petition,

tltion, 8, 11, 17 11, 16, 17. M. 17 H. 7. fpl. 13. pU9.

(c) H. 1 1 Hen. 4. fol. 5ft. and M. 3 eited ft Manning, 579, 1 Vat. 4H, 5.

Hen. 7. fot. 14. Staundf. Prssrog. Re- (*) Pnerog. Regis, c. 04. Jbl. 7*1 b»
fie, 76, a, Semb. also a nonsuit on -a

forcing

850 Petition of Right. [Ch. XIII. Sec. I.

forcing whether any of these writs be awarded or not, either
to the escheator or to the party : and thereupon the party for
whom judgment is given may ouster forthwith into this lands
and shall be said no intruder (a). And the reason of it is be-
cause the judgment tieth not the King to the delivery of the
possession, but only to leave his hands of the possession* And
note, that if a diem clausit (4) come to the escheator, he by
virtue of that writ, before he make any inquiry, may seize the
land for the King's behoof; which after he hath once seized,
if after by office no title be found for the King, thai the party
that ought to have again the land may sue for the game in
Chancery where the office is returned x and then amoveas
manum shall be pwardecL" " In times past (*), men have sued
ouster le main upon a seisin made for the King, although the
office found afterwards did not entitle his Highness. Howbeit
at this day it is not so used, for the escheator will not seise,
unless there be an office found, although he might lawfidly
do it by the words of the writ diem clausit, which usage I do
nothing dislike considering the great trouble it avoideth, that
might else ensue to the King's subjects. And note, that in all
cases where the King is seized, or in possession of the land
by office or any other matter of record, his highness' seizin
cannot be delivered out of him until such time as an ouster le
main be sued (d). As if the King be seized by office of die
land of any idiots, or for year day and waste of lands of a
person attainted; in these cases he that should have these lands
after the King's title determined, must sue an ouster le mains
otherwise it is where the King is not seized of the land but
only entitled to the profits: as of the lands of him that is out-
lawed in a personal action, or a clerk convicted, or such like;
there need no ouster le main to be sued. And if the lands
which are seized into the King's hands be holden jointly by
many, yet every one of these by himself may sue his ouster le
main of his own part without his companions,"

Where the ouster le main or proceedings thereon, are used
by the subject recovering against the Crown, unduly, and con-
trary to law, or upon an office which in point of law is insuffi-

(«) And tec pott, sec 3. dW. 5 and 6. (c) Staundf. Prerog. 78, b.

Judgment and Execution on extent, &c. (4) Ante, 347*

(6) Ante, 328.

cient

Ch. XIII. Sec. 1.1 Petition of Bight. 351

cient for the party to have ouster le main, the King may resehe
the lands without suing any process against the party ; and is
entitled to all the intermediate or mesne issues and profits (a).
Hie subject who adopted such proceedings is also in that case
to be treated and considered as an intruder upon the King's
possession after office (ft). But if the ouster le main is at the
time on due process, and the King's title, though it existed
before, did not appear till after the proceedings had by the
subject, * scire facias is necessary to turn die subject trot (c).

Before the statute 2 and S Ed. 6. c. 8. persons were still
liable to be precluded of their rights, by the untrue finding of
offices. As, for instance, persons holding terms for years or
by copy of Court-roll, were often put out of their possession by
reason of inquisitions, or offices found before escheators, com-
missioners and others, entitling the King to the wardship or
custody of lands, or upon attainders for treason, felony or
otherwise ; and this, because such terms for years, and interests
in copyhold were not found : after which they had no remedy,
during the King's possession, either by traverse or monstrous ie
droit, or otherwise ; because such interests were only chattels
in customary hold, and not freehold. In like manner persons
having any rent, common, office, fee or other profit apprendre,
if such interest were not found in the office entitling the King,
they had no remedy by traverse or other speedy means, with-
out great and excessive charges, during the King's right
therein. To redress these hardships on the subject, it is de-
clared by the statute 2 and 3 £. 6. c 8. that all persons' in the
above cases shall enjoy their rights and interests, the same as
if no office or inquisition had been found, or as they might if
their interest had been regularly found at the same time in
such inquisition or office {d) . Lord Coke observes (e) that
u this being a beneficial law, the estates of tenant by statute
staple, merchant or elegit, and executors that hold lands for

(o) Staundf. Prerog. c. 26. fol. 80, in what other instance parties interested

b. &c may claim, &c. sec post, sec. 3. dir. 1 ;

(b) Ibid. resisting extents. That it is a general

(c) Ibid. 81. a. St, de JSscheatoribus, rule, that the prerogative does notover-
29. Ed. 1. reach claims and' rights of tbiryl per*

(rf) See Com. Dig. Prerog. D. 84. sons acquired before the Crown'* title

Staundfc Pr». 62, b. that a traverse is first accrued. Ibid, ante, 298.

in this case the proper remedy. And (<?) Co. Lit, 77, b.

7 payment

362 Mowtraru de droit. [Cb. XIII.S««.II.

payment of debts, are taken to be within the benefit of the
clause."

The law respecting grants by the Crown of lands seized,
before office found, and the right of the claimant to have a
lease of such lands, have already been noticed (a).

Sect. 2.— The monstrans de droit, manifestation or plea of
right) is another medium of redress for the subject against the
Crown. As before observed, the ' petition' to the King ap-
pears to be the only common law remedy against him ; and,
though the contrary has been asserted (i), there can be little
doubt that neither the monstrans de droit or the traverse of
office (as to lands), was sustainable till the statute 36 Edw. 3*
c. 13. (c).

By that statute (d) it is provided, that if there be any man
that maketh claim or challenge to the lands seized, the
escheator do send the inquest into the Chancery within the
month after the land so seized, and that a writ be delivered to
him to certify the cause of his seisin into the Chancery, and
there shall the cause be heard without delay to traverse the
office, or otherwise to shew his right, and from thence sent
before the King to make a final discussion, without attending
other commandments. And in case that any come before the
Chancellor and shew his right, he shall have a lease of the
lands, &c. (e).

The monstrans de droit, which, in cases where it lies, super-
sedes the proceeding by petition, may be brought either in the
Petty Bag Office in Chancery (/), or in the Office of Pleas in
the Exchequer (g) ; except in particular cases, as in Lady
Broughton's case (A), where the monstrans de droit was brought

(«) Ante, 153.

(b) H. 9 E. 4. fcl. 5*. 13 E. 4. fol.
8. 4 Co. 55, «. Skin. 609. Com. Dig.
Prerog. D. 81. 3 Bla. Com. 256.

(c) See Staundf. Praerog. Regis, 70, b.
60, a. 1 Anders. 181. 11 St. Tr. 154.
5 Bac. Ab. 5*71. Prerog. E. 7.

(rf) And see 14 E. 3. St. 1. c. 13. 8
H. 6. c. 10.

(*) See note (a).

(/) In such case it seems the pro*
readings art not enrolled as in other

Courts, but remain upon files in the
office. Co. Entr. 405. If there be a
monstrans de droit upon an inquisition
in Chancery, and upon that the Attor-
ney-General demurs, there it shall be
delivered into B. R. by the hands of
the Cbaocellor,' and there determined*
Salk. 448.

(g) 4 Co. R. 57, a. Godb. 300. pj.
417. Skin. 609. Com. Big. Prerog.
D. (D. 82.) 3 Bla. Com. f 56.

(A) 1 Skin. 610.

in

ChJfcllL Sec. IL] Mwstrani de dtmt. 665

in B. R* because the reeocd of the conviction and seizure were
there. The bill of manifestation of right or monstrans de droit
ireckes the inquisition found for die King, and then shews the
light of the party, which it offers to verify : and concludes with
praying judgment and an amoveas nsmtr, and restitution of the
lands and tenements, and of the profits from the time of taking
the inquisition (a\

With respect to the instances in which this is the proper
vemedy, the most important rule appears to be this, that- it is
act maintainable where the subject's title is inconsistent with
that found for the King by the inquisition (in which event a
(traverse is the proper course:) but only in cases in which the
party in shewing his right is able, to confess the prima facie
title found for the King and yet to avoid it (b). As in the case
before put (c) of a disseisor of lands iiolden of the Crown
dying aebed without issue, there on such prima Jade title
being found, and specially recited in an office for the King, the
party really entitled may, though his title be not found (d), on
confessing such primd facie claim of the King shew his supe-
rior .right before the wrongful eviction by the deceased dis-
seisor (e)m So that this is the peculiar remedy where the King
is entitled by office or other matter of record (which indeed is
always necessary to entitle the subject to his monstrans de droit)
that is traversable ; but being true cannot be traversed (/*)•

It is in all cases necessary for the subject to shew a tk
. himself ; and, if he do not, it is immaterial that the
no title (g).

, At -caramon law the subject could not in general h»ve had a
mon&rans de dmt if the King were entitled by double matter
of record; that is, by two distinct records, each finding matter
entitling the King to lands : as for instance in the case of an
office finding an attaint, and that the offender was seized of
lands ; here the office and the attainder form two records (h).
But even at common law the subject had his monstrans de droit
in such case, if there were no such attainder in poiqt of law,

(a) Col Entr. 403. Prertg. 73, t. Com. Dig. Prerog . IX

(i) SUandf. 71, *. Co. fintr. 405, S3.
6. 2 Muoiog, 5S3. (f) IM&

(t>) Ante, S44. (g) 3 Mk. 44S.

(4) H.* E»4» 6temd& Pterog. It, (*) Sturadf. Pn* R*fte, M. It, b.

1*, *. "A**, 9M;

(*) And tec other instants, Stavndf.

a a • or

&54

Mons trails de droit. [Ch. XIII. Sec. II*

or his title appeared by any record (a). And by the statute
2 and 3 Ed. 6. c. 8. s. 7. it is enacted, " that where it is untruly
fbunden by office or inquisition, that any person attainted of
treason, felony or j>ramunirey is or shall be seised of any lands
at the time of such treason, felony or offence committed or
done, or any time after, whereunto any other person hath any
just title or interest of any estate of freehold, that then in
every such case every person grieved thereby shall have his or
their traverse, or monstrance de droit to the same, without
being driven to any petition of right, and like remedy and res-
titution upon his title found or judged for him therein, as hath
been accustomed and used in other cases of traverse, although
the King be in such case entitled to any such lands, by double
matter of record/'

If the Attorney-General confess the title of the party, or if
he reply and afterwards confess, or if it be found for the party
by verdict or upon demurrer, the judgment is quod manus
domini regis amoveantur (b)9 and that the party be restored to
the possession of the premises with the appurtenances, together
with the mesne profits from the time of the caption of the
inquisition not answered to the Crown, salvo Jure domini
regis (c).

There is some contradiction in the books whether or not the
subject on a monstrans de droit, or traverse of office, is to be con-
sidered in the nature of a plaintiff or defendant. The older
books consider him in the nature of a plaintiff (d): and con-
sequently that the Crown may plead in disability of his per-
son (i), and that he may be nonsuited (f). This doctrine is
however rendered .-extremely doubtful by subsequent authori-

(a) Staundf. Pre. Regit, fol. 71, b.
and 72, a. b.

(6) As to which and proceediogs-
thereon, &c. tee ante, 347, 8.

(c) Ante, 347. Co. Entr. 404, 406,
b. Finch L. 459, 460. 2 Inst. 695.

(d) 4 H. 6. 11. 4 Co. 57, a. 2
Salk.448. Bui UN. P. $16. One rea-
son is, that the suppliant on a petition
it a plaintiff, (and he appears to be so,)
and consequently, the party in a mon-
$trant d* droit or trarerse, is . so j such

remedies being given in lieu of the
petition*.

(•) Ibid. Y.B.26H.8.1.

(/) Ibid. Staundf. Pre. R. 66, b.
2 Manning, 581. where it is also laid
down, " that tbc nonsuit is peremptory,
4 H. 6. 12. pL 9. at least where issue
has been joined. Semb. M. 7 H. 7. fol.
13> pi* 19. But after a nonsuit in a*
manifestation of right or traverse of
ofl)cer the subject may sue by petition
of right, 4 H. 6. 13."

ties,

Ch. XIII. Sec. II.] Monstrous de droit. 355

ties, and the reasons urged therein (a) against it. The party
assumes, and acts throughout on the face of the proceedings
in the character of a defendant : he shews his right in the shape
of a plea : the Attorney-General replies, and the subject when
he takes the issue ponit se super patriam, as on the other hand,
the Attorney-General in that case petit quod inquiratvr per
patriam. And Lord Somers in his argument on this sub-
ject (b) observed, " I take it to be generally true, that in all
cases where the subject is in the nature of a plaintiff, to recover
any thing from the King, bis only remedy at«common law, is
to sue by petition to the person of the King. I say, when
the subject comes as a plaintiff. For> when upon a title found
for the King by office, the subject comes in to traverse the
King's title, or to shew his own right, he comes in in the
nature of a defendant; and is admitted to interplead in that
case with the King in defence of his title, which otherwise
would be defeated by finding the office." And in another
part he said explicitly : " in this sort of proceeding (viz. a
monstrans de droit), the subject is in the nature of a defendant,
and comes in and pleads to a title found for the King/' The
decision in Rex v. Roberts (c) is also to the same effect* In
that case Roberts having traversed an inquisition whereby he
was found a lunatic, the Attorney-General filed the common
replication, and the proceedings being sent from the petty
bag office to the King's Bench, the prosecutor of the commis-
sion made up the record and carried it down to trial. Upon
which it was objected that the supposed lunatic was in the na-
ture of a plaintiff; and therefore had the right to carry down
the record. And his traverse is in the nature of a monstrans
de droit (d). " To which it was answered and resolved by the
Court, that he was properly considered as a defendant oppo-
sing the title found for the Crown, without setting up any title
in himself; as he might do in a petition of right And indeed
it would be absurd to construe the liberty of traversing to give
a power of delaying the Crown, which must be if the party is
considered as having the common right of a plaintiff. It was

(a) 5 Bac. Ab. 574. And see Tre- (*) 11 St. Tr. 154.

main Entr. 628, 652. Co. Eotr. 404. (c) 2 Stra. 1208.

4A6. 13. a. Vaugh. R, 62. Bro. (d) Qtiery, a Traverse, 2 and 3 Ed.

Ab. Traverse, D. Office, 54. 6. c. B. s. 6.

a a 2 therefore

t

356

Traverse of Office. [Ch.XIII. Sec. III.

therefore held that the record was well made up and carried
down by the prosecutor of the commission."

Sect. 3. — Of traverse of office, and herein of resisting
extents. *

The traverse of office (a) was at common law a very con-
tracted remedy. It only lay in the oase of goods and chat-
tels (6), or where the office did not give a seisin or possession
of land to the King, but merely entitled him to an action (c)
for the recovery of land; as for instance, in the case of an office
finding that the King's tenant had done waste or collusively
conveyed, &c. (d). It was not sustainable at common law,
where the King was entitled to lands by office or by other
matter of record, judicial or ministerial, however untrue (e).
And it was a still more mischievous hardship on the subject,
that at common law, only offices of instruction {/) could be
traversed (g). All these mischiefs are now however removed
by several statutes (h)9 which gave a traverse (or monstrans de
droit J in lieu of the proceeding by petition («*). So that at the
present day, offices (k) may be traversed by any subject (/)
claiming property seized by the Crown, whether the object be
to recover land or not, and though the office be untrue ; or the
traverser have no record shewing hjs right, or in some cases,
though the King be entitled by double matter of record, and
the subject oe not put out of possession by the escheator (i»).

Between subject and subject, mere prior possession is in
general sufficient against a wrong-doer or person who cannot
shew a better title (n). But in the cose of a seizure of land by

(a) As to offices or inquisitions, ante,
246.

(4) Staundf. Prerog. CO, a. 67. a.
though the King be entitled by double
matter of record. Ibid.

(c) Ante, 250, &c.

(d) 4 Co. 56, b.
(?) Ibid.

(/) Ante, 247.

(g) Sav. 130.

(A) 34 Ed. 3. c. 14.
2 and 3 Ed. 6. c. 8.
Mils the latter statute a " right pro-
fitable one/' and points out the several

36 Ed. 3.c. 13.
j. 6. Ld. Coke

common-law hardships it was intended
to remedy and redress, in favour of va-
rious parties. Co. Lit. 77, b.

(0 Ante, 340.

(k) Traversable offices. Staundf. Pr.
67, a.

(/) See ante, 340, the statute 4
and 3 Ed. 6. c. 8. protecting copyhold
terms, rent, fee. out of premises,
though not mentioned in the office.

(m) And see Staundf. Pre. 63, a. et
subseq. Com. Dig. Prerog. D. 83, 84.

(ft) 1 East, 244. See Mr. Adams's
able work on Ejectments, Index, 7rffcv

the

Ch.XIII. Sec. III.] Traverse of Office. 357

the Crown, it is not sufficient for the subject traversing the
office to rely on his own title or possession, however strong ;
but he must answer the King's title, as found by the office,
and though the King have none and the office be untrue, yet
if the traverser cannot shew a legal title, his prior possession
will not avail, and the King may retain against him (a). But
it seems an estate by disseisin is sufficient (&). The party tra-
versing must also establish his title as stated in the traverse :
if he cannot, it will not avail that he has in fact a good
title (c).

" Also," says Staundford (d), "it is not sufficient to traverse
one of the King's titles, but he must traverse them all : for
though the King's title that he is seised by be found not good^
yet if there be any other record, that makes the King a title,
whereby he may retain the lands ; the party must avoid also
that title or else he gets no ouster le main. But learn if there ,
be no such record in esse or being, at the time of the traverse
tendered ; and hanging the plea upon the traverse, a new re-
cord, that is to say, an office is found, which entitleth the
King, whether in this case the party shall be driven to traverse
this office or not, ere he have his ouster le main. And it seems
he shall not, for so he might be delayed of his possession in-
finitely by finding one office after another ; wherefore this office
found hanging the traverse, shall be accounted in law as though
it had been found after the party had had his ouster le main „•
in which case then the party upon the first traverse found for
him, shall be restrained to his possession by an ouster le main;
and then after upon a scire -facias, sued against him to shew
why the land should not be reseised, upon this new office
found for the King, he shall be received in that scire facias to
traverse this new office. Howbeit this advantage he wins
hereby, he then traverses with the King, keeping still his pos-
session, where else he should traverse being still out of pos-
session {e). Thus may ye see, when a man traverseth with the
King, he may traverse all the King's titles that have then
their being by matter of record, and is not bounden any further
to answer for that time."

(«) Sutmd£ Pre. 63, a. 64, a. (<*) Prawof. Regit, 64, b.

(») Hanlr. 230,251, 2, 3. 2 Saun- («) T. 11 Han. 4. f. 80. 13 H. 4.

den, 3. *• ••

(c) SUundf. 63, a. 64, a*

We

358 Traverse. — Resisting Extents. [Ch.XIII. Sec* III,

We have already noticed the point whether or not the tra-
verser is to be considered in the nature of a plaintiff or defend-
ant (a) : and the judgment on a traverse (6) ; .the granting the
lands to the traverser, &c. (c) ; together with the protection
afforded to persons holding inferior interests and claims on
lands, to which the King is entitled by office (</), have also been
explained.

Pleadings, and other proceedings on ordinary occasions, in
the case of the Crown, and in particular in the event of a tra-
verse of an office, will be now considered in noticing the mode
of resisting extents upon inquisitions or offices.

Extents (e) are founded on offices under which the Crown
claims certain property. There is nothing peculiar to tra-
verses to offices on extents; and the law respecting such
traverses is equally applicable in the case of traverses to other
offices. " If," says Gilbert (f)9 " any will plead in discharge
of the extent, or of the debts, he must traverse upon a parti*
cular roll, the whole matter of charge to which he pleadeth ;
and upon plea put in, the party who prosecutes for the King,
must procure the attorney-general to demur or reply, aa the
case require th. This traversing of offices upon extent, seems
to come in by 34 Edw. 3. c. 14. and 36 Edw. S. c 13. (g) "

The mode of resisting extents and proceedings thereon, may
be considered in the following order : 1. Appearing to extents
and claiming property. 2. Motions to set aside extents, to
pay money, &c. 3. Pleadings on extents, &c. 4. Trial and
proceedings incident thereto. 5. Judgment. 6. Execution. 7*
Error.

1. Appearing to Extents and claiming Property.

It is a principle of law that no one can traverse the King's
title without shewing title in himself (A). Wherefore it has
always been a rule in the Court of Exchequer, that no one
shall be allowed to plead to an extent, that is to traverse the
inquisition, or can have a locus standi in Court, till he has
claimed property.

(a) Ante, 354, 5. (*) Ante, 961.

(6) Ante, 347. (/) Excbeq. 171.

(c) Ante, t53. (j ) Ante, 356.

(<*) Ante, 340. (A) Staundford, Prerog. 63, a.

i On

Ch.XIII. Sec. III.] Traverse. — Resisting Extents. 359

On the return day of the extent, the following rule to ap-
pear and claim is indorsed on the back of the extent (a).
day of 181 — •

" It is this day ordered by the Court, that if no one shall
appear and daira the property of the several goods and chat-
tels, lands and tenements, debts, credits, specialties and sums
of money, particularly mentioned and described in the inqui-
sition, and several schedules hereto annexed," (varying the
description according to the property seized) " on or before
this day se'nnight, a writ of venditioni exponas do issue to sell
the same."

« Fowler."

If the extent should not be actually returned till after the
return day, the rule, it should seem, cannot be given till the
writ is actually returned. This rule is always drawn up for
" this day se'nnight," L e. it is a six day rule, not accounting
Sunday, whether intervening or at the end. If there should
not be time to give this rule in term, it is given for the seal-
ing-day, or seal-day, as it is indifferently called after term (6).

The general seal-day, which for the purposes of sealing and
issuing the King's process, and for filing and delivering over
informations in matters of revenue, is considered as the ficti-
tious last day of term, is always appointed, at the discretion
of the Court, on the last day of every term. In the issuable
terms, from the increase of the revenue business, the seal-day
has been appointed on the Friday month after the term. . In
Michaelmas Term it is appointed within a day or two of
Christmas day, and in Easter Term it is appointed on the Fri-
day before Whitsunday; but for the precise days on which the
general seal-day is appointed, reference must be had to the
minute book of the register, in which it is always noted the
last day of every term (c).

If the defendant mean to dispute the debt, or a third person
wish to claim the property, he must (d) appear and claim before
the expiration of this rule and enter his appearance and claim

(a) West, 174. 2 Manning, 533. Exchequer, vol. 2, p. 4. West, 175.

(b) R. T. 2 Jac. 2. West, Appendix, (rf) Sec West, 175, 6. Otherwise the
128. Manning, A pp. 232. owner of the goods is bound. 3 Price,

(c) Fowler's Equity Practice of the 127.

on

360 Traverse.— Resisting Extents. [;ai.XlILSec.IIL

on the back of the writ, either in his own name or in the name
of one of the sworn clerks of the King's remembrancer's office
in which the return is filed (a). The form usually is " A. B.
appears and claims all and singular the goods and chattels,
lands and tenements, debts, credits, specialties, and sums of
money," (varying the description according to the property
churned,) " taken and seized under and by virtue of a writ of

immediate extent issued against for the sum

of

The 36 £• S. c. 13.(6), upon which the traverse upon ex-
tents is founded, directs that the claimant be heard without
delay. It seems also that the subject as a matter of right may
enter his claim at any time (c) : though a strict adherence to
the rule may be necessary to prevent a sale, unless the Court
interpose (d), and as before observed (*), the claimant cannot
insist on a lease of the land unless he claim within $ month*
At all events however, if a party do not appear and put in
his claim within the time limited by the rule, the Court will it
seems admit him to appear and claim afterwards, on an affi-
davit of special circumstances. Accordingly in a late case {f )
where the claim had been entered in the name of the assignee
the Court on motion that a claim might be entered in the name
of the bankrupt for the purpose of avoiding the necessity and
expence of proving the bankruptcy and proceedings thereon,
granted a rule to shew cause which was afterwards ma<|e ab-
solute; no cause being shewn. > So where the clerk in court
accidentally omitted to enter the claim in due time (g).

Of course the party against whom the extent issued may
appear for the purpose of denying the debt: and there are
few, if any instances in which cithers claiming any property or
interest in the lands or chattels seized, and having a legal (4)
title may not come in and interplead with the Crown. The
statute 2 and 8 E. 6. c. 8. protecting the interests of others in
lands, has been already mentioned (*). So a mortgagee though

(a) 2 Manning, 585, 590. Ibid. Ap- taken,

peodix, 282, 6, 7. (/) Rex ». Asptaall, H. T. 57 Geo.

(*) Ante, 356, end note (h). 3. West, 178.

(c) Y. B. 13 Ed. 4. 8. (j) 3 Price, R. 38, note.

(d) And see Manning, 586. (A) Ante, 303.
(«) Ante, 255, 6. 36 Ed. 3. a 15. (i) Ante, 350.

See Btutb. 25 j What security usually

8 he

ClOaiL Set .TIL} Traverse.— Relisting Extents. S61

he has not had possession (a), or a party holding a statute
merchant and possessed of the land by virtue thereof (6) ; or
a party with whom the extendee has contracted (c); or whose
goods he has wrongfully taken (<*); may appear and claim*
The interest claimed by a stranger must however be distinct
from that of the party against whom the extent issues ; it must
be a property and interest to which he may be restored (<?).
When a term is extended the reversioner, having no interest
during the existence of the prior chattel interest seised, cannot
claim (/): nor can a creditor suing the extendee move to set
aside the extent if it cannot delay the creditor's execution, he
not having obtained judgment (g).

In cases where a common (A) or profit apprendre in the lands
of the extendee is claimed by a stranger under the 2 and $
Ed* 6.&S (0* «nd such interest is not found by the inquisition,
as i£*is better to effect if possible, a traverse is under that sta-
tute the proper course of proceeding.

Different parties may appear and claim different parts, or
the same parts, of the property seized (A): and one joint tenant
may sue without his companion (i). Where there are Various
conflicting claims, the Crown has the prerogative power of
deferring the establishment of its title till the parties have
interpleaded among each other, when perhaps the Crown claim
may be rendered more evident (ik).

. («) Bttob. 104. pU 1*3. Stone o.
Evans, WoodC 5th ed. and 7 East,
$40, 1. note. 3 Campb. 394. 1 B. and
A. 593.

(») Bonb. 1*3. When, on an mqu-
wjtba, a man was found possessed of a
term jure uxoris, and after bis death it
was told on a vtndi&mi txponas, the
widow was permitted to plead to the
^iwtkio.thDu^fhehaddefiadedmn
ejectment brought by the purchaser,
and aled a bill In Chancery. Bunb.
990.

(e) 7 Vet. 961.

(d) 9 Manning, 588.
(#) P. 15 H. 7. ml. 6, b.
(/) 50 Am. 394, pL 5. Pita. Tra-
93. 9 Manning , 58T.

(f) See ft Price. B. 156.

(4) InIA Baym. 308, it it and that
\iA hath land, in which B. hath com-
mon of pasture for sheep j A. is out-
lawed, and the title of B. h not found
noon the inquisition; Ms cattle may be
taken upon a UoarifAaa*, until he hath
pleaded his title in the Exchequer, and
hath it allowed ; eoit/nx, if his title had
been found upon the inquisition.

(•) Ante, 340.
' (A) West, 176.

(/) 2 Manning, 588.

(m) See Ibid. See Btanndf. Pre. R. ch.
19,. on Enterpleader, between heirs,
where there are several offices and dif-
ferent grantees of the Crown, fee. As
to the remedy of the party who me-
ftlfmumg, 589.

2. Mo-

962 Traverse. — Resisting Extents. [Cb. XIII. Sec. III.

2. Motions to set aside extents / — to pay money, fyc.

These motions may be made either in term time on any day
except Monday or Thursday (Fridays and Saturdays are the
usual days (a) ) ; or they may be made at the sittings after
term (now usually held in Gray's Inn Hall), which are always
appointed by the Court on the last day of every term, except
Easter term, when, on account of the shortness of the vacation,
the Thursday next after the last day of that term is always
fixed as a day for motions only (ft).

It is usual to give (to the clerks in Court, not to the solicitors
immediately employed (c) ) two days previous notice of a mo-
tion to set aside an extent (d) : and it is highly reasonable that
the opposite party should be provided with the means of resist-
ing the application. But on pressing occasions, towards the
end of the term, the Court will sometimes direct that short
notice of motion for the next day be accepted (e). And no
, notice is necessary where the party moves for a rule to shew
cause merely (f). And the writ ought to be brought into
Court by the officer of the Court before the motion is made,
where the objection arises upon the face of the extent (g).

1. Even such of the proceedings as do not form a part of
the record, as the affidavit of the debt and insolvency, may be
set aside on motion for any insufficiency apparent on the fece
of them. It is highly reasonable that this remedy should be open
to the defendant, as of course only such statements as consti-
tute a part of the record can be traversed or demurred to.
This summary remedy by motion to the Court, is also allowed
the defendant where the proceedings on record are on the
face of them defective : as where a sufficient debt is not stated,
or the inquisition is argumentative, &a (A). For, though a
demurrer on account of such defects in the record is decidedly
sustainable, and where the point is doubtful, the Court will

(a) 2 Manning, 610. 233. 2 V. 60(5.

(b) 1 Fowler's Eq. Pr. Excbeq. 284. (/) Rex c. ColHngbridge, Dec. 17,
Wert, 170. 1816. West, 179. S. C but not S. P.

(c) 1 Price, 385. 3 Price, 280.

(d) Ibid. 2 Manning, 610. (g) 1 Price, B. 395.

(e) 1 Price, 117. Questions of hrre- (*) 3 Price, 288. See ante, 268.
gularity settled by deputy remembran- as to the validity of the inquisition,
cer, who may give costs. Manning, App.

leave

Ch.XnLSec.IIL] Traverse.— Resisting Extents. 363

leave the defendant to that remedy (a) : still it would be unjust
to deny him a mode of taking advantage of the irregularity,
by which considerable expense and delay are avoided. Where
either course of proceeding is open to the defendant, it is in
general advisable to move in the first instance, instead of de-
murring, because if the motion be decided against the claim*
ant, he may still plead ; whereas after argument on demurrer,
the judgment is usually final (ft).

2. Irregularities not apparent on the face of the record,
generally arise out of the proceedings before the sheriff and
jury, on the taking of the inquisition under the commission,
or of that under the extent; as that insufficient evidence was
considered by them sufficient. As in these cases the defect
cannot be pointed out by a demurrer,, it not being apparent on •
the face of the proceedings, the defendant may, and if he mean
to takfe the objection must (c), indeed apply to the Court
by motion, which should however be supported by an affidavit
of the circumstances. If the Court entertain doubts respect-
ing the facts on either side, they will in some cases direct a
feigned issue to ascertain them (d). Where a stranger is the
party moving on account of some extraneous defect, he must
it seems shew his title to the property seized by affidavit (e) ;
but it appears that any man may as amicus curia, and without
an affidavit, move to set aside extents to which there are ob-
vious objections (f).

It seems that a motion to set aside an extent should be made
as early as possible, the general rule being that an irregularity
in practice is waived by the party being knowingly so inactive
as to lead his opponent to suppose that he does not mean to
take advantage of it, by which he is or might be induced to
proceed (g). The motion comes too late after the party has
obtained time to plead (A). But it may be made before the
appearance and claim are entered, and the assignees of a bank-

fa) Banb, 35. (/) Hsrdr. 85, 99. 9 Manning, .

(b) Wait, 182. Tidd, 6th ed. 607, 9.

(c) 4 Price, R. 11. In which case (g) 9 Manning, 606. 1 East, 77. .
the prerogative process was not main- Tidd, 6th cd. 954. 6 Taunton, 7. 1
tainable according to the practice of the Marsh, R. 403. S. C. 9 Smith, 391 .
Court (h) 3 Price, 38. Rot still he may

(rf) 9 Manning, 609. demur if the objections appear on the

(e) West, 183, face of the record.

rupt

364 Traverse—Resisting Extents. [Gh.XIILSec.III.

rupt have been allowed to move to set aside an extent, even
after a venditioni exponas has issued, no claim having been
entered, and it appearing that there had not been an unrea-
sonable delay [a). It seems also that objections to the process
itself, but not informalities in the execution of it, may be taken
advantage of by motion after appearance (A). In every case it
is a question for the discretion of the Court, under the pecu-
liar circumstances, whether a reasonable degree of diligence
has been exercised, and whether the opposite party has been
prejudiced by the delay.

The Court will not in general try a matter of fact on affida-
vits (c), and therefore the only case in which the defendant
would be allowed to deny the debt *on affidavit, seems to be
where the question is as to the legal effect of facts which
neither party disputes (d).

The inquisition may be set aside pro tanto only, as for a part
of the debt, the residue of the inquisition and extent remaining
effective (e). A new writ may be resorted to {/).

There are other motions besides those to set aside the pro-
ceedings which the defendant or claimant on the extent may
sometimes have occasion to make, as that debts collected by
the sheriff under the extent (the payment of which he has not
the power to enforce (g),) be paid by him into the hands of the
deputy remembrancer, to be laid out pendente lite in the funds:
or in Exchequer bills, orip such. manner as the Court shall
direct, as the money would otherwise be likely to lie unpro-
ductive for some time (A). It seems, that the right of the
Crown to the money when disputed, remains in abeyance tilt
judgment, and consequently, that the consent of the Crown to
the object of the motion is unnecessary (*).

The party, too, sometimes moves to pay the debt, for which
the extent issued, into the receipt of the Exchequer ; or that
the sheriff, who has levied money, shall pay the debt out of
the money in his hands into the receipt of the Exchequer, and
that on such payment an amooeas mantis do issue; and it would
seem, that this may be done at any period of the currency of

(a) Wert, 184. (t) 1 Anstr. 193. Hughes, Ext. 178.

<*) 3 Price, 288, 290. 2 Manning, (/) Ante, 258, 271. 3 Price, 369.

401. (g) Ante, 306.

(c) See TmW, 5th ed. 187. ' (A) 1 Price, R. 301.

(<0 Weft, 184, 5. 2 Manning, 605. (f) West, 186.

the

Ch.XIILSec.IIl.] Traverse.— Resisting Extents. S65

the extent, and the Court will permit this to be done, provided
tiie Crown. is not placed in a worse situation by such payment
than that in which it would be on recovering judgment. Tbete-
- fore, where goods and lands were seized under an extent, and
the goods, according to the appraised value in the extent, wene
more than sufficient to pay die debt, the Court allowed the
party to pay the debt into the receipt of the Exchequer, with-
out costs, because the Crown, if it succeeded, could not have
recovered costs on the sale of the goods, aad as they were suf-
ficient to satisfy the debt, the sale of die lands on which costs
are in general attainable1 could not have been allowed (a). On
the same principle, however, if lands only are seized, the de-
fendant must also pay costs into Court; bat in such case
poundage is not an item of costs, it not being due on the sale
of lands (4).

If a greater sum than is due be levied under an extent, -or
if costs or poundage be levied where they are not payable, the
Court will on motion order them to be rdfiinded (c)»

3. Pleadings on Estcnts, $c.

The appearance and claim being entered, a four-day rule
to plead is given on the back of the writ. Further time (usu-
ally six weeks) to plead may be obtained on a motion of course
under counsel's hand ; and, on affidavit of special circum-
stances, further additional time may on motion be gained, at
the expiration of the period allowed in the first instance.

Pleas to extents are dither— 1st,' By the party against
•whom the extent issued, whether he be the original Crown
debtor, or a debtor in the second degree (<£), and by persons
claiming in some representative character under them; or,
2dly, By strangers claiming a property in the effects seized,
without objecting to the debt

In the former case, the statute S3 Hen. 8. c. 39. s. 79. seems
to afford a very extensive and just remedy for the subject, and
has on that account been called the statute of equity. It pro-
fa) 3 Price, B. 40. At to costs, ning, 607, 8. note q. ,
ante, 310. If doubt as to amount of (*) Ante, 311.

debt, a summons may it seems be ob- (c) 1 Price, R. 448.

tained for the particulars of it. 2 Man- (<*) Ante, 309.

vides,

S66 Traverse.— Resisting Extents. [Ch. XIII. Sec. IIL

▼ides, " that if any person, of whom any such (a) debt or duty
shall be demanded or required (4), allege, plead, declare or
shew, in any of the said Courts, good, perfect* and sufficient
cause, and matter in law, reason, or good conscience, in bar or
discharge of the said debt or duty ; or why such person ought
not to be charged or chargeable to or with the same ; and the
same cause or matter so alleged, pleaded, declared or shewed,
sufficiently proved in such one of the said Courts as he shall be
impleaded, sued, vexed, or troubled for the same, that then the
said Courts, and every of them, shall have full power and
authority to accept, adjudge, and allow the same proof, and
wholly and clearly to acquit and discharge every person
that shall be so impleaded, sued, vexed, or troubled for the
same."

With respect to the subject-matter (c) of defence to the debt
on which the extent is founded, there is nothing very peculiar
in the case of pleading to Crown process. The defendant's
inability to plead the statute of limitation, a set off(d), bank-
ruptcy^), insolvency (f)9 solvit post diem(g)9 the statute of
frauds, or any other defence given by statutes, by which the
King, not being named, is not bound (A), forms substantially the
only exception from the general law of pleading defences to
debts between subject and subject. The defendant in the case
of an extent, may plead non est factum, or performance (i ), if
the Crown claim a debt on a specialty; and, in the case of a
simple contract debt, though it become a record by the inquisi-
tion (i), the defendant, under the general issue, non indebitatus
modo et forma (/), may dispute the debt, or give in evidence
any defence, except those above mentioned. Nor could the
Crown, before the statute 58 Geo. 3. c 98. (m), enforce the

(a) It relates to all debts, due to the 1 Price, 23. West, 199. Post. 368, n. (c)„
Crown. 1 Co. R. 19. (*) Ante, 284.

(ft) It will be observed, that the (/) Ibid,

clause' only extends to pleadings by (g) 1 Price, 23.

Crown debtor, not to pleadings by a (A) By what stataies the King is

stranger claiming property and not dis- bound, pott, ch. 382 to 384.
pnting the debt. (») Trem. 584, 608.

(c) Form of pleading, see the En- (ft) West, 200.

tries, and West, 194, fcc. TMd's App. (Q Ibid. 199. Trem. Pl.Cr.583.

payment

tit Extent. (a) See 4 Price, 50.

(<f) Rex v. Copland, Hughes, 204.

Ch.XIII. See .lit] Traverse.— Resisting Extents. S6Y

payment of a bill of exchange, tainted with usury in its original
formation.

The effects being seized as the property of the defendant, it
is of course unnecessary for him to claim in his pleadings any
property in them. He merely disputes the Crown debt; if
that be unfounded, his right to the property remains or reverts
to him as a matter of course. But where third persons claim in
a representative capacity, under the defendant, as assignees of
the defendant, a bankrupt, they must deduce title from him ;
and in such case the assignees must shew, separately, every feet
entitling them to maintain the character they assume (a).

It is however highly worthy of observation, that where the
extent is not against the immediate Crown debtor, but against
his debtor, or other debtor in the third or other degree, such
debtor in the second, third or other degree, may, in disputing
the debt due from him (the parly pleading) to the Crown
debtor, set up any defence, whether given by statute or not,
which he might have insisted upon if he were sued by his
immediate creditor, the Crown debtor (ft). As in the case of
an extent by the Crown against B. who owed money to -A,
the Crown debtor, JB. may plead a set off, &c. to the debt due
fronx him (B.) to A. And the reason is, that the Crown in
seizing the debts due to its debtor, cannot beAin a better situa-
tion with respect to the right to such debt, than the Crown
debtor himself; a better remedy only, not a better right, is
claimed by the King (c). The debtor in the second or third
degree may also contest the right of the Crown to issue an
extent, on the debt alleged to be due from the Crown debtor.

In no case can a defendant plead double or several matters
in the case of the Crown, under the statute 4 and 5 Ann, c
16. (d). But he may plead separately to distinct parts of the
inquisition ; or plead as to one part, and demur to another
distinct and independent matter {?). And where the Crown
claims by two or more distinct titles, each must be tra-
versed (f) : otherwise where there are two inquisitions finding
the same title (g).

(*) Wert, 196. See Ibid. 177, 8, Price, 03.

197 ; where the best mode of proceed- (•) Trem. PI. 582. 3 Manning,

ing in such case i» clearly pointed out. 598, 9.

(*) Ante, 305, 337. (/) Ibid, and 601, 3. Ante, 357.

(c) 2 Manning, 593. (g) Ibid. 3 Manning, 601, 9.

id) Parkar, 13. Forrest's R. 57. t

It

S6B Traverse.— Resisting ExtmU, [Ch,XIIL Sec JII.

It will have been remarked that the statute of Hen. 8. before
mentioned (a), allows the debtor to allege, plead, declare or
ahew any sufficient matter in law, " reason or goodoongcientfe,*
in discharge of the debt.

Several old cases (b) are to be met with, in which parties
have been relieved under equitable circumstances, in pursu-
ance of the provisions of this enactment; though it is difficult
to lay down any precise rule or criterion on this point {c).
The claim to relief may be brought forward either by plead-
ing to the extent (d), or by bill in the Exchequer .(*}, or by
motion to the Court of Exchequer, who possess an equitable
jurisdiction over extents {/).

2. In the case of pleadings by strangers claiming tide para-
mount the interest of the Crown, the debt due from the Qcown
debtor cannot be disputed. Hie pleadings or traverse in this
case are not founded on the statute of Hen. & (g). Their
foundation has been already mentioned (A). In tins case the
party must, as before observed (i)» not only ahew his ow»
title, but traverse that of the Crown, i. e. of the party gainst
whom the extent issued, or confess and avoid it

If a bad title be found for the Crown on the face of the in-
quisition, the party may, it seems, demur without trarening
or shewing title (£). If found against the claimant, it seems 10
be peremptory (/). But it seems he niay afterwards have a
petition (m\

As to the replication or demurrer, on the part of the Crown*
it mil be remembered that the Crown cannot be non-prossed
(p) 5 and consequently a rule to plead would be ineffectual and
cannot be giwetu Btft the Court in the -exercise of their kgal
and equitable jurisdiction in <cases <ef this nature, will order
jirigptent Id be entered &r tht defendant, as if hi* pie* ware

(a) Ante, 365, 6. .(*) Ante, 755, 560. See 3 Manninf ,

(*)T*ep.aa fcane, 54. Hifdr. *M.

jv, $0*. <*** «*, »i **m <s}4»t%a*r.

(c) See 1 Price, 216. Query, wbe- (*) 50 An* 322. d1. 1. BmDeaier-
Uier a set off be within the statute. 8. rer in Ley. 25. Hardr. 176. Sed vide
Manning, P. & 592. note u West, «15.

(d) See note a* 0) *■«■<& Prere*. 65, b. Seat.
(#) Ch. Pre. 153. <f») Ante, 354, oeU;(/).

(/) 1 Price, R. 96. note a. (a) 3 Anetr. 753. See *Bte* £44, 5.
(g) Ante, 365, 6.

contessea

Ch. XIII. Sec. III.] Traverse.—- Resisting Extents. S6&

confessed, if the attorney-general will not on application enter
a nolle prosequi, or proceed within a reasonable time («).

The Crown has various prerogatives in replying to its de-
fendant's traverse or plea (ft). In cases where the right of
property is in dispute, the claimant, as we have just seen, must
not only state his own title, but should traverse that of the
Crown. In this case the Crown has the option of maintaining
its own title, without noticing the defendant's : or, without
noticing the defendant's traverse of the Crown title, the King
may merely dispute the title set up by the claimant (c). And
it appears that the King may in a manner reply double, by
maintaining not only his own title, but disputing also that set
up by the traverser; and it is also usual for' the Crown to
confess and avoid, and traverse also (d). So if the plea allege
several facts, the King may traverse all of them (e) : and if
several of the King's titles be traversed, he need not maintain
all of them (f). And though no estoppel can exist against the
Crown (g), the traverser may be concluded by the King reply-
ing matter of estoppel (h).

During the term in which issue has been joined with the
Crown, but not in a subsequent term, the Crown may waive the
issue and take another, or demur (0- But the defendant can-
not waive his plea, and plead the general issue without the
consent of the attorney-general (Jc) ; though he may enter a

(a) Parker, 50. On extents in aid sugf stion, (that is, not material,) the

judgment is moved for if the Crown King can, no more than a common per-

does not reply before the er.d of the* son, (and for the same reasons,) forsake

third entire term. 2 Manning:, 603. his own title, and endeavour only the

* (4) As to replying in abatement, 2 destroying of the defendant's title ; far

Manning, 600. the weakening of the defendant's tide

(c) Bro. Prerog. pi. 65, 78. Staundf. without more, can no more make a

Pre. 65, a. Via. Ab. Prerog. Q. 5. good title to the King than it can to a

Com. Dig. Prerog. D. 75, 85. Sav. 67. common person." See 2 Vex. 541.

2 Cro. 481. Sav. 64. 2 Vez. 541. (rf) See 2 Manning, 601, crtss Keilr.

Ante, 357. But it seems necessary for 175, b. pi. 3. 9 H. 4. 6. pi. 20.

the Crown' to reply to the fresh matter («) Com. Dig. Prerog. D. 75. Savil.

set up in bar by the defendant, where 19.

the Crown title is not on record by (f) Stanndf. Prerog. 65, a.

office, Ice. as iu the case of an infbr- (g) 1 Co. R. 43. Hob. 339.

mation for a penalty, &c. Vangh. 64. (A) Com. Dig. Estoppel, D.

16 Via. Ab. 538. 6 Com. Dig. 74. (i) Staundf. Prerog. 65, a, b. Vaugh.

And in Vaugh. 62. it is on this ground 65. Com. Dig. Prerog. D. 85. Not

laid down : " that where the King's after verdict, Hardr. 455.

title appears to be no more than a bare (*) Cro. Car. 347. 2 Rok 41.

b b retraxit

.370 Traverse.— Resisting Extents. [Ch. XIII. Sec. III.

retraxit generally, even after the replication (a). The Crown
cannot depart from an issue actually joined opi its own tide, to
traverse the party's title (A). If issue hajs not been joined* the
Crown may, even in a subsequent term, waive bis rqriica&ion
or demurrer (c), and may amend at; any tupe, on paying-
cpsts (d).

By not demurring to collateral and formal objections to the
traverse, and taking an issue in fact, which is found against the
King, the Crown waives its right to tal$;e adyaqiage of them(e).
The replication is bad if it amount substantially to a depas-
ture from the extent or inquisition, instead of supporting it
according to the ordinary rules of pjeadiqg {/).

It is osupl for the Attorney-General to confess; the pie*
wjiere it is evidently true : affidavit of the frets being soraer-
times previously made(g)» A confession by th? Attorn^y-
General in a matter of fact binds the King, but not i£ seems ur
the case of a confession of a matter of law, the traverse being
bad in law.(A).

The replication is always signed by the Attorney-General :
during thp vacancy of that office by the Solicitor- General (f).

The rule to rejoin is, lil^e the ryle to plead (£), e^t^red on
the back of the extent; and is a four day ru}e. Further time
to rejoin may be obtained if necessary.

4. Trial i and Proceeding* incident thereto.

Issue being joined, the next step is for the Crown to issue
a venire [I) to try it by a jury. This process mpy be issued
into any. coupty by the prerogative of the King who may try
an issue where he pleases (m). But issues on extents are always
tried in Westminster (n).

(a) Brown, P. E. 541. Price, 5.

. (b) Ante, 369, note (c). (/) Trent. P. C. 594.

(c) 2 Rol. 1L 41. Cro. Car. 347. (g) See Buob. 102. pi. 69.

Vangb. 65. Hardr. 455. PL Can. 322, (a) Hardr. 170. Com. Dig. Prerog.

a. Sir T. Jones, 9; 10. D.W.

(d) 3 Anstr. 714. ante, 310. Ai to (i) 4 Burr. 2572.
waiving the count in an information of (*) Ante, 365.

intrusion, &c. ante, 334. (0 See Tidd's Append, tit. Extents.

. («) Dyer, 2BS, b. The Court will (m) 1 Sid. 412. 1 Ventr. 17. Parker,

not direct a second argument in a cause 1&9. 2 Price, 1 13.

argued during the absence of the Soli- (») West, 216.

citor-General, mescly to hear him* * '

• . ■ . 7 ■ if

Gh. XIIL Sec. III.]} Traverse.— Resitting Extents. S7 1

If the defendant live at a distance, or 40 miles from town,
10 days' notice of trial k proper : otherwise 6 day* (a).

If the Crown will net proceed to trial, the defendant after
waiting .has no other remedy (6) than by application to the
equitable Jurisdiction of the Goort (c) ;. and the Court will give
judgment for the defendant or claimant if the Crown will not
on application proceed in a reasonable time (d). On extraor-
dinary occasions of delay, the Court will order the Crown
officers to shew cause why the effects should not be returned
to the party (e). But though there is in strictness no positive
mode of compelling the Crown to proceed to trial,, it appears
to be the better opinion that after a distringas and Jury returned
upon it, the Attorney-General cannot stay the trial (/)»

Notice of trial having been duly given, the Crown enters the
record, and the cause is called on as usual (g).

The Crown has the privilege of trying its causes at nisi

priuSy or in bank. Trial at nisi prius shall not be granted, unless

the Attorney-General consent (A) : and it shall be there and

not in bank if he require it, even upon an indictment removed

by certiorari (i).

Where there are distinct issues by different defendants in
fact and in law, the Crown may try which it chooses before the
other (£)•

Whether or not the traverser may be nonsuited has been
doubted (/). On demurrer being found against him it is pe-
remptory (m): though he still has his petition (*)«

The verdict is as in ordinary cases (d). It may be general
or special. And, as' in verdicts between subject and subject,
a verdict in the case of the Crown may aid a case defectively
stated.

The postea being returned a four day (p) ride tot judgment

(a) West, 216. 2 Manning, 619. P.C. 411. c 42.. i. 2.

(6) Ibid. (0 Cro. Car. 348.

. (c) Am ia the event of the Crown de- (!) 1 Str. 266.

laying to reply, ante, 368, 9. (/) See ante, 354. 2 Manning, 6*13.

(rf) Parlces, 51. Staandf. Prerog. 65, b.

(t ) 3 Anttr. 753. (m) Ibid*

(J) 4 Leon. 32. cited Com. Dig* Pre- (n) 2 Manning, 561, 613, 14.

yog. D. 85. 5 Bac. Ab. 571 ; Prerog. (») Seeaa to demurrer* to evidence

E. 7. by the Crown. Ibid. 613. Plowd. 4, 8.

(g) 2 Manning, 613. (/>) 2 Manning, 615.

(A) Savii. 2. 2 Inst '424. 2 Hawk.

3SB2 if

578 Traverse— Resisting Extents. £Ch-XIII,$ec>III.

is given to allow the traverser to move in arrest of judg-
ment, &c. as in other cases. The party has also the privilege
of pleading (in lieu of the remedy by audita querela^ which
is not maintainable against the Crown (a) ), any matter as a
release, &c. arising after verdict and between the award of
execution (5).

5. Judgment.

If the King succeed either upon verdict or nonsuit (c)9 the
judgment (which need not however be drawn up unless error
be brought, as the King is already in possession under the ex-
tent), is that the subject take nothing by his traverse (d).

The judgment for the traverser against the King is univer-
sally, that the King's hands be amoved and the party be re-
stored, &c. (e).

A peculiar prerogative of the King may here be noticed,
namely, that if in any suit between subject and subject a clear
title in the King appear, (that is, it seems, be admitted between
the parties (y*), ) the Court may ex officio (g) give judgment
for him on such title ; though the Crown were not a party to
the suit (A). And the Crown may interpose to take an issue
for the purpose of eliciting a -title (t). Nor will Chancery
decree against the Crown on a title apparent on the record,
though not insisted on at the hearing (K). But if only a pre-
sumption of title appear for the Crown, the Court will in some
cases proceed to give judgment in the action, but will suspend
execution until the party has interpleaded with the King (Z).

(a) 2 Manning, 378, 578.-

(b) Ibid. 615. Bro. Ab. Prerog. pi.
46* See further as to motions for new
trials. Venire dt novo, &c 2 Manning,
616, 7.

(c) Ante, 954.

(rf) 2 Manning, 61S.

{e) Ante, 348.

(/) Bro. Ab. Prerog. pi. 16.

(g) " The Judges ex Q^feio, and every
one else in his station ought to assist
the king in Us rights, and the judges
are bound ex officio to take notice of
-fftry statute which concerns the King.

»

Jenk. 903. pi. 67. See post, ch. 16.
that the judges are one of the King's
councils.

(A) Jenk. 25. pi. 47 ; SI 9. pi. 65. P.
N. B. 38. Cro. Car. 590. Plowd. 243.
5 Bac. Ab. 570. Ante, 244. 2 Barn,
and Aid. 269, 70 ; org.

(0 Cro. Car. 589. Hob. 126. 1 An-
derson, 53. pi. 131.

(*) 3 Ves. 424. In Admiralty, 3
Price R. 97.

(/) Trin. 29 Ed*. 1. Memoranda in
Scaccario, 42, 9. Adauf Penreth'i
Case.

f Est-

CkXIiLSecIIL] Traverse.— Resisting Extents. S7S

6. Execution.

It rarely happens that any process of execution, actually
is$ues either for the Crown or the subject : the former being
in general already in possession of the property ; and the latter
being at liberty to enter merely by virtue of the award of an
amoveas manus, which has been fully considered (a). The
award is of itself a transfer of possession in point of law, and
is necessary to divest the interest acquired by the King under
the office ; as without it the subject has no legal possessory
right, and cannot sue trespassers, &c (b).

The party is also entitled to restitution of his property, with-
out deductions of poundage or expenses (c).

7. Error.

By several statutes ((f), a writ of error lies on a judgment on
an extent, &c, into the Exchequer Chamber. It seems, how-
ever, that the consent of the Attorney-General is previously
necessary (e) : but such consent will not be withheld if any
point really arguable can be raised (f). After the termination
of the writ of error in the Exchequer Chamber the case may
be taken into the House of Lords (g).
. A scire facias is unnecessary, on a writ of error against the
Xing (A). The writ does not preclude the subject from taking
possession on his judgment of amoveas mantis [i){ And where
a judgment for the King is reversed, the subject is entitled to
be restored to his property and all intermediate issues (£),
though he is, it seems, driven to his petition for monies actually
paid over and received into the King's hands (J).

(a) Ante, 348. But see 3 Loon. 194, pi. 244. cited. 2

(£)"9taundf. Prerog. 78, a. 1 Rol. Manning, 6£1.

Ab. 138. Plowd. 546, 559. Hardr. (/) 1 Price, 209.

422. m (g) 2 Brown, P. C- 375.

(c) Wrrt, 217. Costs, &.c. ante, 310. (A) F.N. B. 21. H. Sav. 10. pi, 26,

(if) 31 Ed. 3. c. 12. 31 £1. c. 1. (»') 2 Maiming, 496, 621.

a. 1. 16 Car. 2 i. 2 and 3. (*) Sec the cases, &c. Ibid. 694.

(*) M. 24 E. 3. f. 35. pi. 43. F. N. (/) Ante, 345.

B, 81. H. (a). Savile, 131. pi. 203. >. <- >

i. .

J CHAP*

374 Privileges and Incapacities of King. fCh.XIV.

CHAP. XIV.

Of the Privileges and Incapacities of the King in several

matters.

The more important privileges of the King hare already
been-fylly and separately noticed. There are also Yarioti*
royal immunities of minor importance, which require con-
sideration. These principally relate to the person and private
property of the King; and are no less just and politic than
those weighty prerogatives which are inherent in his Majesty
for the benefit of his people.

The dignity of the sovereign and the safety of the state,
necessarily free the person of the King from liability to be
arrested on any occasion {a). Neither can he be amerced or
nonsuited (£). And in order that the King may not be ex-
posed to inconvenience, and as a mark of that respect towards
him which the law invariably inculcates, on sound principles
of public policy, none of his Majesty's household or menial
servants or officers, bond Jide substantially and continually
employed, or liable to be permanently employed, in waiting or
attending on the royal person, can be arrested or takes in execu-
tion it) civil actiops (c), without notice first given to, and leave
obtained from, the Lord Chamberlain of his Majesty's house*
hold (d). This is the prerogative of the King : it is anc im-
portant freedom from the full operation of the laws, which waa
instituted, not for the benefit of the servant, but for the con-
venience of the sovereign. The reason assigned by Lord
Coke (e) for this privilege, is thus put by him : " concerning
those that serve the King in his household, their continual
service and attendance upon the royal person is necessary" To
cases falling within the reason and groundwork of this im-
munity, must the privilege be restrained. Where the party
is a domestic and menial servant of the King, as for instance,

(a) 2 lost 50. 687/

(A) Bro. Ab. Prerogative, pi. 100. (rf) T. Raym. 152. 3 Keb. 3, 485.

Vio. Ab. Prerog. T. 2. Tidd, 6th ed. 197.

(c) 5 T. R. 686. and cases there ci- (*) 2 Inst, 631.
tad. Qu. on a capias utlagatvm. Ibid.

a clerk

Ch.XIV.;j Privileges and Incapacities <tf King. 315

a dferk or junior cleft of the King's kitchen {a\ or his Ma-
jesty's COachmaa in ordinary (b)9 there can be no doubt of his
privilege. But difficulties may frequently arise, and it is by
nb means an easy task to point out distinctly what particular
officers Ml Within this doctrine; Attention must be paid to
the nature of the duties required by the office hdlden by the
party claiming the privilege. If he be merely a nominal offi-
cer without fee, assisting only On certain grand and peculiar
occasions^ as coronatioris, royal funerals, &c; and neither acts
as a servant in ordinary in the royal household, nor is a con-
tinual attendant on his Majesty's person, there seems no legfel
foundation for the privilege (t). And it appears that a gen-
tleman of the privy chaxhber is not therefore privileged from
arrest (d). On the accession of his present Majesty to the
thtone* a profclatnatioii was issued (i), whereby (after reciting that
his ilajestfg predecessors, had signified their pleasure that the
royal servants should have and enjoy all antient privileges) his
Majesty* thinking it reasonable that all his servants in ordinary
with fee shtodd, in regard cf thtir constant attendance upon his
Majesty s person, enjoy the like privileges with those of his
predecessors, ordered that the Lord Chamberlain and other
officers therein mentioned, should signify to all mayors, she-
riffs* Ac; of corporations and comities, that his servants shbtild
have their antient privileges, and that thenceforward hbne of
the servbfits in ordinary "with Jee^ should beaf any public offices,
serve on juries or inquests, watch or Ward." This proclama-
tion does not mention the privilege from arrest, as -the antient*
proclamations oh these occasions used to d6. In a recent
case, Abbott, C. J. observed (/), that " the form of the pro-
clamation shews that the privileges there enumerated are
confined to his Majesty's servants in ordinary with fee. And
that though the proclamation was not applicable in all its
tei-ms to the case then before the Court, it furnishes a ground
for 4 distinction, which may be taken between servants with
and without fee."

It should seem that if a servant of the King be clearly pri-

(a) 5 T. R. 686. the original nature and doty of the gea-

(&) 2 Taunt 167. tlemen of the Privy Chamber, p. 77 j *

(c) 2 B. add AM. 234, 7, 8, &c cited 2 B. and Aid. 236 and 239, note

(rf) Ibid. (/) Ibid. 231

i£) Pegs'* Cwiafiti'Daiertatkm on

vileged

976 Privileges /tnd Incapacities. 4>f, King. [Ch.. XXV*

* -

vQeged from the nature of his employment, the privilege irttt-
not be affected by the circumstance of the King not residing
personally, at the time, in the palace in which. the sqnrant is
employed ; such palace being still privileged as such (a). And :
it has been decided that a servant of the King ia privileged
from arrest, though he publicly carry on trade, and the debt
was contracted in the course of his trade (6).

Where the privilege is clear, the Court will discharge the*
party on motion*, where it is doubtful they will leave him to-
his writ of privilege (c).

On the same principles, no arrest can properly be made ia
the King's presence, or within^the verge of the royal palace (rf),
except by an order of the Board of Green Cloth, or unless
the process issue out of the Palace Court (e). And all the
royal palaces are sanctuaries for persons liable to be arrested ;
and no species of judicial process can be executed therein ; if
any thing in the shape of possession and royal appearance be
kept up, though the King do not at the time personally reside
there (f). Nor can a distress be made on lands in the King's
possession (g).

As the law cannot presume indiscretion or imbecility in the
King, however young, his being under 21 years of age does not
avoid his acts {h)9 and his non-age does in no case operate as
a disability.

The King's goods are also exempt from various liabilities!
which affect the personalty of his subjects* Even if a subject
succeed in a petition against the King, his Majesty's goods are
not liable to be taken in execution (*')• The King is not liable

(a) See 10 East, 578.

(b) 2 Taunt 167.

(0 2 B. and Aid. 294,

(4) 3 JNou Com* 2*9, 4 Ibid. 276.
Tidd, . 6th «L 282. By 28 H. 8. c. 12.
the verge of. the palace of Westminster
extend? from Charing Cross to West*'
minster Hall. But an arrest within the
verge of th<? ,p»i*ce is no ground for
discharging ttw defendant out of ensto*
dyf, 7Taunh3>M»

fr> 3 Tsrm #n MS.

(A ,10*»*»*™>. lCamnn. 475,
note. So of ecclesiastical process, fl *

Inst. 141. Wood's Inst 19. 8th ed.

(g) Jeuk. 112. pL 18. Plowd. C.
242, b.

(A) See Co. Lit. 45. Bac. Ah. In-
fancy, B. " If the King alien lands
parcel of his Dutchy of Lancaster,
within age there, he may avoid it for
his non-age ; for he has the ^dutchy as
Duke not as King; otherwise of land
which he has as king, for the King can-
not be disabled by noo-ege, as a com-
mon person may be." Bro. AU tit*
Prerog.pl. 132.

(♦) See the remedy ^ ante, 348, 9.

to

ChiXI V,] Privileges and Incapacities qf King. S77

to pay taxes (a), toll {b\ pontage, passage (c), custom (d)9 or
poor rates (*) ; nor is his personal property subject to the laws,
relative to wreck, estrays, waifs (/), sale in market overt (g),
distress damage feasant (A), or the like. It is, indeed, gene-
rally laid down, that " no custom which goes to the person, or
goods, of the King shall bind him (t )." But the King is not,
it seems, by virtue of his prerogative, discharged of tidies for
the antient demesne lands of the Crown ; but his Majesty being
persona mixta, is capable of a discharge de nan decimando, by
prescription, which in effect operates as a general discharge
from tithes (£). But this privilege does not extend to the King's
grantee (/) ; and by the alienation the prescription is destroyed'
for ever, and will not revive, even though the lands subse-
quently come to the Crown (m).

The privileges and prerogative rights of the Crown in judi-
cial remedies and proceedings (n), and various peculiarities
respecting the Crown lands (o), have been already mentioned.
We may here add, as disabilities arising from the royal dig-
nity, that the King cannot personally execute any office, judi-
cial or ministerial (/>), or arrest in person (g). For the same
reason, and also on the ground that even the King shall
not give evidence in his own capse, it is clear that his Majesty's
testimony is not admissible in cases of treason or felony* (r).
Whether or not his Majesty's certificate, ' under his sign m&»'
nual or the great seal, as to facts within his knowledge, can be
admitted as evidence in a civil cause between subject and sub-
fa) See 3$ and 40 Geo* 3. c 88. i. 6. if the forest be disafforested, and he
Crown lands, when bought by private within any parish, then it becomes
funds of the King, &c. liable to parlia- titheable. 3 Cruise, 66.
mentary and parochiul taxes. (/) lb. Hotham v. Foster, 3 Gwill. 869.

(6) Palmer, 85. Com. Dig. Toll, G.l. (r») Hard r. 315.

(«) Jenk. 83. pi. 69. Vin. Ab. Pre- (a) Ante, 845, &c.

fog. T. 2. (o) Ante, 203 } 209 to 21 1.

(d) Ibid. Bro. Ab. Prerog. pi. 112. (p) Ante, 75, 6; 80. Bro Prerog. 125.

Fitz. Ab. Tolle, 5. Co. Lit. 3, b. 8 Co. 55. 2 Ventr. 270.

(*) 2T. R. 372. 3 Ibid. 519. See Bat still an office may be granted to
39 and 40 Geo. 5. c« 88. s. 6. ante, him, as he may execute it by deputy
note (a). 17 Vin. Ab. 168.

(/) Via. Ab. Prerog. T. 2. (o) 2 Inst. 187. "The King cannot

(g) 2 Inst. 713. Plowd. C. 243, b. arrest any one on suspicion of felony or

(A) 2 Manning, P. K. 551. treason, though the subject may ; for

(i) Via. Ab. Prerog. T. 2. if the King do wrong there is no reme-

(*) Hardr. 315. Sir W.Jones, R. dy against him." Per Markham, C.J.
387. 2 Bla. Com. 31. " Forest land 1 H. 7. 4.
is not tithcable, provided it is in the (r) 2 HaL P. C. 282.

hands of the King', or of his lessee j bat

ject,

378 Privileges and Incapacities qf King. [Ch. XIV.

ject, may admit of some doubt, Ro}le, In his Abridgment (a),
says, that " it seems that the King cannot be a witness ma cause
by his letters under his sign manual*" No reason is, however*
assigned, or authority cited, fofr the proposition ; and Rolle ad-
mits, that the case of Lord. Abignye %h Lord Clifton, in Chdh-
cery (4), is to the contrary. Iii that 4ase* King James's certifi-
cate, under his 6ign manual, of promises made by Lord Glifc
ton, was allowed upon the hearing as a {proof and exception
for so much. So, in 10 Jac* 1* the King's certificate was ad-
mitted and acted upon as proof (0), ajul clearly the King's tes-
timonial, under -the great sfealf was antientl/ allowed in the
case of an essoin de servitio frgis (d).

Also, on acootinf of the dignity of the King, he is not bound
to offer an acquittance to any mafi| but the sufcjject who pays to
the King ought to bring with him acquittance, and demand it
of the Kinff(e). Nor can the King be a copyholder; add,
therefore, where a person who holds a copyhold estfete becomes
King, the copyhold is dufcpendedj for it woikld be bdneath the
dignity of a King to perforin such sendees as fliose to which
copyholds are subject* But after his decease*' the next person
who becotnes Entitled to it* {riot being fr King), shidl hold by
copy in the Usual mariner*, tod the tenure be revived (/). In-
deed* the general rule i% that the King cannot be tenant tor
or hold by toy services df# his Subjects (g). The King may
however, it seems, hold ris 4 trustee of lands, though be carinot
be compelled to execute the trust (A). And as observed by
Lord Bacon (i)y " the King may be a cestui que use, but it
behoveth both the declaration of the use and die conveyance
itself to be niattef of record* bectrusti the King's title is com-
pounded of both/' And sis the King cahnot in law be seised
to a use, he cannot convey by bargain and sale (A), by cove-
nant to ttarld seized (J), or by lease and release (m). The King

(a) Tit. Testimonies, H. pL 1. pi. 13.

(b) Hob. R.213. (/) 3 Sid, 82. And we Bac. Ab.
(cj Godb. 198, 9. Prerog. E. U

(rf) F. ft. B. 17. 2 Ha1. P. C. 282. (g) Ibid.

The author hat been favoured with a (A) See Ibid. Bac. Lane, 54. 1 Ves.

sight of a MS. of Ld. Chancellor Finch, 453. 1 Cruise, Dig. 1 ed. 407, 422,

in which Rolle's opinion is decidedly 488; Index, title King. See ante, 217,

contradicted, and it is clearly laid down, 235. 39 and 40 Geo. 3. c. 88. s. 12.

«' that in a civil Court, between party (#) Read. 60.

and party, the King may testify his (*) 4 Cruise, Dig. 175, 1 ed.

knowledge." (/) Ibid. 187.

(e) Bro. Ab. Prerog. pi. 11. cites 2 (m) Ibid. 198.
H. T$ 8. See Yin. Ab. Prerog. T*2.

may

.XIV.] Primkges <wtf IsKapadUks if *ft#i W

may also be appo&ted an execafetf; but* as it etirmot be pt%u
snmed that he hasstiffidieni time Aid Msmre to engage in a pH*
vafte concent the la* allows hiiti to nominate sttch person* tt^
lie shall think proper to take upon diem the cXectitioh bf the
trust, against vftiom all persons may bring their actio***? atoo,
the King may appoint others to take the account* of titch e*fe*
ctttors(a).

The King may kvy a fine by gram «nd render^ ami bftt
bis estates tail thereby (n). So he may dense lands (tf)? and
reversions, and remainders verted in him are not bertable by
recovery (e). Sd the King may declare the uses of a fine or
recovery {f\ But his Majesty cannot saltier a cotmriod roafr*
very (g)> and ia bound by the statute de <kmis(h); and by the
statute 32 Hen. 6. c* 38- s< 4. ; so that if a husband atone levy
a .fine of his wife's lands -to the King, still the wife may ente*
after the death of her htosbend (i)*

Between subject and subject the rale is, vigiUmtibwg et nek
dorrmerUibus Jura submntat (i)<> So that in many instance*
rights may be lost merely by die neglect of dm party toenfottt*
them. From the eariieat periods of English law, it has* how-
ever, been a malom tintftuUam tenspusocamit Regi (I) ; a max-
im grounded en the principle that no laches can be imputed td
the sovereign, whoso time and Attention are supposed to bd
occupied by the cared of gov eminent, (ardtta rtgnipro bono put*
licc(m)i) " nor ia fheie any reason that the King should kttOW
by <be negligence of his officers, or by their compacts or OortM
butation with die adverse party {*)*

Numberlesa decisions in the Books have proceeded tifti
tirely on this principle^)* Thns the King catmot be bat**
red by a fine to which he fe not a party, and five yeatV ndU

(A) Hob. 347. 9 Bos, and Pul. 412.

(/) Staimdf. 32, 3. Plotfd. Com.
243, a. 263, b. Com. ITig. Prerog. D.
86. Godb. 297.

(m) Godb. 895*

(n) Hob. 347.
• (cj See 5 Bbc. Ab\ 362. f if. Prerog.
E. 6. It is on this ground (bat Khtg^t
goods shall not be wreot, strays, waift.
Ifov this rule affects presentation td be-
nefices, Jcc. ante, 62.

chum.

(a) 4 Inst $35. Godolph. Repert
76.

(6) Dagd. Orijf . Jar. 93. MsnHbx,
No. 394. 7 Rep. 32.

(e> Ibid, an* 52, a. Pb*d;247.

(rf) Ante, S04.

Or) 5 Cruise, Big. 302, 1 ed. Tit 36.
e. 13. s. 20, &c.

(/} 4 Cruise, ttg. 22f , 1 ed.

fc) CrOi Car. 96; 7. ftgot, 74, 5.

(A) 7 Hep. 52, a. Plottd.427.

(i) 1 Inst 681.

SSO Privileges and Incapacities of King. £Ch.XIV»

claim (a). Nor can there be a tenant at sufferance against the
King ; for as no laches can be imputed to his Majesty for not
entering, if die King's tenant hold over he will be considered
as an intruder (b). So no man by entry can at common law
gain himself a title against the King (c\ nor will any1 descents
toll his entry (d). So the statute of limitations does not bind
the King (e). And it seems, that if a bill of exchange or pro-
missory note come into the hands of the Crown before it be
due, the non-presentment of it when due, and omission to give
notice of dishonour, are not material {/).

Even at common law, however,, a prescription may be good
against the King, as in the case of waifs (g) ; and in many cases
the Ctown, by deferring a seizure, &c may have a less effica-
cious remedy (A); and " custom upon the land, as borough
English, gavelkind, &c. shall bind the 'King (i).w

And by the nullum tempus Act, 9 Geo. 3. c 16. (£), the King
shall not sue, &c. any person, &c for any lands, &c. (except
liberties and franchises), or any title which has not first ac-
crued within sixty years before the commencement of such
suit, unless he has been answered the rents within that time, or'
they have been in charge, or stood insuper of record, and the
subject shall quietly enjoy against the King, and all claiming
under him, by patent, &c. This extends not to estates in re-
version or remainder, or limited estates* These lands shall be
held on the usual tenures, &c Usual fee-farm rents confirm-
ed* Putting in charge, standing insuper, &c. good only when
on Verdict Demurrer or hearing, the lands, &c. have been
given, adjudged, or decreed to the King. And prescription is
rjow pleadable against the Crown, even in the case of franchis-
*& aud offices; far by statute 32 Geo. 3. c 58. six years*

' (a) t Cruise," 1 ed. 208. cb. 13. s. 2.
'" \hy\ Inst. b% b. 2 Leon. 143. Bro.
•An. tit Dwrctsm, *• Hob. 322. Hoi.
Ab. 659.

<*)Co. lit. 41,b.

(rf) 2 Leon. St. pi. 31. Plosrd. 043, a*
.Via. Ab. Prerog. T. 8.
. ('). Ante, 366.

if) Cbittj on Bills, Mb ed. 257, 319.
cites West on Extents, 28, 29, 3a

(g) Staundf. Praerog. Regit, 32, a. b.

(A) Ibid, ante, 25 1 . And tee further
exceptions to the rnle nullum, &c Co.
Lit. 1 19, a. note 1 .

(0 Via. Ab, Prerog. T. 2. If land,
which ought to pay a fine at the aliena-
tion, be aliened to tbe King, he shall not
pay fine. Per Priscott, Bro. Ab. Cos-
toms, pi. 9, cites Y. B. 35 H. 6,*5,

(A) Act on this subject relative to
Ireland, 48 Geo. 3. c. 47.

possession

Ch.XIV.] Privileges and IncepticUi^s of King, sal

possession of a corporate office gives the corporator a prescrip-
tive title upon an information in the nature of * quo warrant*,
exhibited by the Attorney-General, or other officer, on the
behalf of the Crown, by virtue of any royal prerogative, or
otherwise* Neither, is it competent to the Crown to question
any derivative title, where the person from whom it is derived
was in exercise, de facto, of. the office or franchise, in virtue
of which he communicated the title for a like period of six
years. .*

The King is not bound by fictions or relations of law (a); or '
by estoppels (b)9 even though such estoppels would affect. the
party through whom the Crown claims (c). But this does not
prevent the King from taking.advantage of estoppels, though
they ought in general to be mutual (d).

It is also an established principle, that where the King's
right and that of a subject meet at lone and the same time, the
King's shall be preferred (e). Detur digniori is the rule in the
case of a concurrence of tides between the King and sub-
ject (f). This rule has been already explained, as it regards
debts and remedies in the case of the King (g) ; and there are
several cases in the books on the same doctrine (A).

Hob.

Godb.

9 Co.

251. 16

• (a) Jenk. 287. pi. 21.

(©) Godb. 299. 1 Co. R. 48.
339.

(c) Staundt Prerog. 64, a.
391.

{J) Co. lit 352, a. b.

<#) Co. LiU 30, b. 4 Co. 55.
129. Hardr. 24. 3 Leo
Vin. 566, 7.

(/) 3 Veutr. 268.

(g) Ante, 288, fcc.

(4) See 5 See Ab. 558. Prerog. E. 4.
16 Vin. Ab. 566, tit Prerog. T. 2. pi.
23. " Hence it it said, that if there
be a lord mesne and tenant, and the
tenant pay the rent at the day to the
mesne, before noon ; and after on the
same day, the mesne die, his heir with-
in age, the tenant snail pay it over
again to the King." 3 Leon. 251. If a
woman marry end hath issue, and lands
descend to the wife,, and the husband

enters, and after the wife is found an
idiot by office, the 1ano> shall be seized
for the King ; according to this maxim,
that when the title of the King and a
common person .begin' at one instant,
the title of the Kief shall be preferred.
Co. Lit 30, b. So, if the woman had
been the King's nief, and one had mar-
ried her without the King's license, fcc
and lands bad descended before or after
issue, yet, the King, upon office found,
shall have them. Co. Lit 30, b. 4 Co.
55. Baron and feme joint purchasers
of a term for years, the husband drowns
himself, the lease is forfeited, and wife
surviving shall not hold it against the
King or bis almoner ; because the title
of the King and a common person com-
ing together, the King's shall be pre-
ferred. Dyer, 108. Plowd, 260. Dame
Hale's Case.

On

582 By what Statute* hotatd. [CIuXV.

• On tfce same prinapk^ tke King- cuaot b* * joint teaanti
&c with, a (object (*).

CHAP. XV.

T¥*ge»erat wule, ckarij if, th* though (he Kmg may w«it
bflwetf of th* provision* of W$ Acts o£ Parliament^ bet 19
*9t bound by such a* do vat pajrticuiasly aad expcessiy meo~
tion him (c).

Tfo thia rule*, bowewytfossft i* a wast aBgtrtaut efccaptibn,
jwnelf* thai th* King, is impliedly bound by statute* pa*ed
£<w <fc.pi^Uegpod& tfo*eUe£of th.e doo*; tha general *dwK*
jnfl&t; o£ le*n*in#, religjw,and: j*s&e« •* W* prevent fraud*
injpt£ or wsong, (ft);, Tbegeface the, King, though not. named,
i* bpupd by the stateta da dew* to grovea* wa»nglfal ation**
tion (e) ; the sfcaiwte of Kk.$.. against dtesfmti mwnaaft o* aKai*
ations by husbands of their wives' estates {/) ; and the statutes
of EJtiz.. against lease* of ecclesiastical lands (g}> simony (^), and
frawhitorct caweyawes to defraud; parcfcasars, See (*X 80
titer King i* bound bythe< statute of Marlbridge (Jc) against,
distraining tenants to answer without writ (l)f and other simi-
lar statutes Ok}. Sq by the, statute Westm. l..(S,Ed L) c 5.
thrti: Qiwae shall* disturb) election* uponr-pon* of greaft forfeit-
ures^*)-; and by1 the* statute' of additions, I Hen. & e. 9. (o}.

So where an Act of' Parliament gives a new estate or right
to tie King, .it sh^U bind hid as to die manner of enjoying, and

(a) Ante, 241, 2. (f) U eo. 75. Rot K. 151.

(6) 11 Co. 68, b. Leon. 15a. (A) Co. lit IfO.

(c) 19'V1n. Ab. Sututa, R 10. Bte. (i) 11 Co. 7*. b.

ikt>rewg. fc. 5. frfflwrlL Pi C. c. 4*. (*) 51 H.ft cap. 82.

».*v (/) 2Inst.l2A, 169C

(<f) IbW. *lowd. 19*, 7; 11 0D.-6B, («) Bac Ab. Prerog. E. 4.

K ^ (»)' « Bwt l'«9: 4Mfcd. 207;

(0 Ante, 379. (o) Bh>. Ab. Parliament, pi. 4T, etet

(/) Ibid. 5E&4,32;

, U&lhff

Cfu XV.] By what Stobk* bomi.

$8$

Utftog the right, at well as a strict («)• And though upon
the construction of a statute, nothing " stall be taksa by
. sqvityt" (or related construction,) against th* Ki&g(b) ; yet id
ha& been observed by J. Doderidge. (c\ that "where th*3utyret
has authority to do a thing by the express letter of a statute,
tUp shall not be taken away by any strained constoustian»
though it be fas the benefit of the. King.9 And the Cram,
though not nameo^ is bpun4 by. tjbe geaeral w**ds of statutes
which tend to perfbna* tbe wiU of* feuiviec or donor (d\

But Acts of Farlfgiggtf vfeitik wpuld divest or abridge th*
Kfrg of feis pre^ogftliv^, )y% bitereate or ttfe remedies, in the
slightest degree, 3q not in general exteftd t*v c* tod Ae
King, unless there be express words to that effect (c). There-
fore the statutes of limitation, bankruptcy, insolvency, set-off,
&c. {/) are irrelevant in the case of the King ; nor does the
statute of frauds (g) relate to him \h). So on the statute quia
emptores, that none shaH alien lands in fee to hold of himself (i),
and Magna Charts, that common pleas shall be holden in some
certain place (k) r and other instances might be mentioned (/).

And in mere ipdifferqnt statutes, directing that certain, let-
ters shall be performed as therein pointed out, the King is not

. M 4 Moa\ 207, Show, H. 2fla.
Croo*eXCase, By ai| Afit of ftfllia-
inept, S3 Car. 2. o, 11. tip parishes of
St Michael, Wood Street, and St.
Mary Staining, in. London, were, united-
and eataWMked-.&A one. pau&cbnjxhj.
aj^ij. wAfcnmvided, tftttf t^a, Sol pr*
sentation should be made by the patson.
of such of the said- churches^ the. en-
dowment* whereof-were of ' the greatest
value ; the King was patron of St Mary
Staining (of far less value), and a com-
mon person patron of. St Aficbael,
Wood Street, who presented l£r.
Crpoke ; on a. cacqxt en,t$red\against the
institution, it was (fctennined by ciyi*
liaps, by the advice of lawyers, at doc-
tors' Comwonjs^tha^thi^Uto^ though
in the a%rn*tiYe, and without any ne-
gative wesjk, ezten^d to„ and. so.. for
bound the Kiug4 as to den/iye him, of
a*g preference he. might have by, bis
prerogative, arin.cawe.i

est. kin^nnt^WthothAai ft and the*
the Act of Parivwwnt, giving a new
estate to the King, and prescribing the
manner of enjoyment, the method li-
mited must take place of the King's

prerogative*

(ft) Oodb. W, or* cites, flow*
233, 4.

(c) RoI.R.67. See 10 Bep.84.

(V) Yin*. Ab% Statutes, E. 10* pit 11>
cites 1 1 Rep. 72, b. 73, a.

(0 19 Vin. Ab. Statutes, E. 10.. Bac.
Ab. Prerog. E. 5.

if) Ante, 366.

(g) 29 Car. 2^0. 3.

(h) 1 Salk, 162. This doctrine as tp
the statute of frauds* doubted by. Lord
Hardwicke. 3A*k. 154.

(i) Lit. s. 140. Co. Lit, 98. Plowd.
*40.. 11 Co. 68, b.

(i) Piowd.24^ b* 24fc a, an*, 77.

(0 See Bee. Alt Brareg. E.4w

thereby

as*

Crown Grant*.

[Ch. XVI. See?.!.

thereby in many instances presented from adopting a different
opime, in pursuance of his prerogative. «* TOiere are als6
statutes (says Lord Hobart (a) ) which were made to put
things in an orderly form, and to ease a sovereign of labour ;
but not to deprive him of power which cannot be said to bind
the Kingw" Thog though the 25 H. 8. c. fil . s. s. directing the
manner of granting dispensations, licences, &c in ecclesias-
tical cases, provides that dispensations shall not otherwise be
granted, the King may grant them as before (b). And though
the statute 27 H. & c 27. enacted, that all grants concerning
the Court of Augmentations, should be under the seal of that
Court, grants under the irreat seal have been held valid (cY

CHAP. XVI.
Of Grants from the King.

Sect. L— What the King may grant and what he may not.

True are certain supreme powers and prerogatives inherent
in, and inseparably annexed to the royal character. These
form the political capacity of the King, and are incommuni-
cable ; the constitution having entrusted the King alone with
the discretion and power of exercising them. So that for in-
stance his Majesty cannot grant to another the prerogatives (d)
of assenting to Acts of Parliament (e) ; of pardoning offenders,
unless perhaps abroad and on sudden occasions, as during the
King's absence, fcc. If); or of making Judges, &c (g). or de-

(*) Hob. R. 136.

(i) Ante, 55.

(c) Dyer, 50, a.

(<f) " Tbeldiig cannot grant his pr«-
logative," Bra. All. Patents, pi. IS.
ekes 14 H. 4. 9. Bio. Ab. Prerog. pi.
lt,60i "Thought!* King grant jura
regetis, yet it shall not exclude the
King hiawelf,* per Heath, J. Mar. 165.
8«e the statute 87 H. 8. c. 94. for re-
nnmwrtngto the Grown several powers
audauthorhtetkereeofbieexefcfawdby
of the Counties palatine. Re-

straint on aliening hundreds. Skinner,
604.

(«) Ante, 74. Qn. in the colonies,
ante, 34, 5.

(/) Jenk. 171. pi. 36. Hob. 155.
7 Co. R. 36. Mo. 764: 27 H. $[
c. 24. s. 1. In the colonies, ante, 35,
Power of Governor of New South Wales,
fcc to remit sentence of transportation.
Ante, 89, 90. 30 Geo. 3. c 47.

(g) Bro. Patents, pi. 45, 111. 17
Vra. Ab. 89. Prerog. m. b. pi. 21. Sta-
tute 27 H. 8. c. 24. s. 2. 5.

nizens.

(XX VI. ^c, I.] Crom Grant* 9B#

nizens («). Nor can the King grant a trust reposed in fclmself!'
as sovereign, as a lapse (A). Nor could ke grant his dnpeneu>£
power (c); or purveyance; butlerage* &c. (i>: and he iafe^
strained from transferring his prerogative in sakpetoe(t); .€h4<
year day and waste {/) ; and the power of prosecntieinsptai
and carrying into effect, a penal or other statute or law. (#)♦ ^

The King's grants are also void whenever they tend to p*e-t
jndice the course and benefit of public justice*, Thus the Kitigt
cannot grant an exemption from the jqrisdictioo of airy Cosrt^
if he do not erect another jurisdiction of the same notary for
that would create a failure of justice : so that he Cannot exempt
a town from the Admiralty jurisdiction, if .he do not grd»k*
power to have another jurisdiction there (A). Nor can the King
exempt any one from civil responsibilities to a fellow sub-
ject (i); or from liability to be punished for offences he may
coiqmit (k). And both at common law (/), and by statute (m)9
grants or promises of fines or forfeitures before the conviction
o£ or judgment against, the party on whoqi they are to be
levied, are void*

Nor can the King by grant create a forfeiture of goods* &c.
On this ground the charter of Hen. 6. to the corporation of
dyers within London, granting them power to search, &c and
if they found any cloth dyed with logwood, that the clotk
should be forfeited, was held void (»). It is also a clear $e-*
neral principle that the King cannot. by grant or otherwise*
impose new, or enhance old, charges, impositions or taxejt pa,
any of his subjects (o). Therefore grants by the King tfig&jfe
merchant shall pay so much for searching or, nyqguring,jitft
goods (p); that he shall not import wine without paying ft*
much (q); that a merchant who imports wine at any Qtfcor ppj*

(a) Bro. Patents, pi. 45. 111. 17 (A) 2 Rol. Ab. 201. 1. 46*

Vin. Ab. 89. Prerog.m. b.pl. 21. Sta- (i) Ante, 90, 1.; &c.

tute 27 H. 8. c. 24. s. 2, 5. - (*) 2 RoU Ab. 192* 32. 35. Vin. 4b.

(4) Hob. 208. That the King may Prerog. V. A.

empower a subject to granjb or erect a (/) Ibid.

corporation, ante,* 1 27, 8. (m) 21 Jac. 1 -. Cv 3. a. 1 . 1W. and

(c) 7 Co. 36, b. 21 Jac 1. c. 3. s. h, M* st. 2. c. 2. a. I. .<<

(rf) 2 Rol. Ab. 187. 1. 35. (») 2 Inst 47. Sid. 441. ¥<mfa>4%

(t) 12 Rep. 13. {o} 2 Inst. 58, 60. Cum. Big. P*a*

(/) Jtnk. 307, pi. 83. Bro'. Ab. rag, D. (D*4Q.)

it

Prerog. pi. 104, Ante, 220. (/»)'2Jwt62.; ,..**».

(g) Jenk. 190, pi. 93. 7 Co. 57, a. ' (j) lUd. OX , . w •- *

cc than

386

Crown Grants. [Ch< X VL Sec. L

than the port of & shall pay treble customs (a), are respectively
unfounded. And merchants are not, it seems, bound by their
voluntary grant to the King of a tax on their goods; as that
would induce them to sell at higher prices (i). But in certain
cases where there is a substantial quid pro qua, a real benefit
to the subject of which he can and doe6 avail himself; the King
may by grant impose a reasonable charge on his subjects for a
limited or other period. Therefore the King may grant a
market, fair, ferry, &c. with liberty to take toll (c) : and by
prescription, a subject may claim pontage, for building and
keeping a bridge; or murage, for erecting and keeping a wall
for defence, &c. (d) ; or toll thorough, that is, toll for passing a
highway kept in repair, &c. by the claimant, there being a good
consideration and benefit moving to the subject (e). The writ
of ad quod damnum (f)9 which is in general issued previous to
the grant of a fair, &c. shews how zealously the law has con*
sulted the common weal in these cases. So a grant from the
Crown, in derogation of the common law, as that one should
hold a court of equity, &c. (g) ; or that an estate should descend
contrary to the common law, as according to the custom of
gavelkind, &c. (h) ; or contravening the statute law, >as the
Navigation Act, &c. (*)> is void ; for the King cannot make
law or custom by his grant. And if penalties are given by
Acts of Parliament for relief of the poor, the King cannot
dispose of them otherwise (£).

1 It is scarcely necessary to mention that die King's grants
are invalid, when they destroy and derogate from lights pre-
viously vested in another subject by grant, &c. (/).

Having thus mentioned the principal cases in which the
King is restrained in his grants, it will naturally be our next
subject of inquiry, in what instances no such restraint exists.

(a) 2 Inst. 61.

(b) 2 Ro». Ab. 173. 1. 20, 25.

<c) Ante,194, 5. 2 Rol. Ab. 1 71 . 1. 30;
202. 1. 42. Bro. Patents, p). 12. Com.
Big. Prarog. D. 48, and tit: Toll. 18
Yin. Ab. Prerog. Af. b. pt. 19.

(d) Ibid. Bro. Ab. Contempts, pi. 4.
Noy. 176.

(e) 1 Wih. 299. 1 T. R. 660. 4
Taunt. 520.

(/) F. N. B. 220. .

(g) 2 Rol. 192. I. 37. Hob. 63.

Ante, 76.

(*) 2 Rol. Ab. 164. 18 Vio. Ab.
Prerog. M. b. pi. 23. Bro. Ab. Patents,
pi. 25, 41, 100. Ibid. Prerog. pi. 53
and 103. But it seems tbe King may
convey in fee, with a condition restrain-
ing tbe grantee from alienating. Bro.
Ab: Prerog. pi. 102.

(i) 12 East, 296. Ante, 163.

(*) <fenk. 307, pi. 83. 7 Cd. 36, b.

(/) See ante, 193, 4. 119, 125, TS2.
post. 400.

The

CinXVL Seal] Crown Grants. 387

The King's power to grant letters of marque >and repift-
sals (a), courts and offices (4), franchises (c), patents for invet»-
tidns (d)9 Crown lands and possessions (*), the sole liberty of
printing certain works (/"), protections (g), and lands seized
under offices (A), have been already considered at large, and
various other rights of the King, as to grants, have also been
incidentally noticed.

. Grants of the revenue were formerly unlimited (f), but are
pow very properly restrained. Formerly, every branch of the
revenue was in the disposal of the Crown, and might be grant-
ed; but since the Revolution, and the introduction of the fund-
ing system, this has been altered, and a particular portion only
of the public revenue, viz. the civil list, is the property of the .
King, and vested in him for the maintenance of his dignity (&).
Stilly however, the power of the Crown over such civil list re-
mained without limits; and, therefore, as well to secure the
Crown as the subject, the legislature introduced several provi-
sions, restraining and regulating the grants of pensions out of
the civil list (I). And Parliament had long before confined
and regulated the alienation of Crown lands («). Still, how-
ever, the right of the King to transfer to a subject franchises,
which are termed flowers of the Crown, and formerly consti-
tuted an important part of the revenue ; and forfeitures ; fines
for offences, &c. (n), remains unchanged.

Between subject and subject, choses in action, or rights of
action, are not assignable, so as to vest in the assignee the pow-
er of suing at law in his own name against the debtor (o) : but
this doctrine does not extend to the King, who, by virtue of his
prerogative, may effectually take by assignment, or, by ex-
press and special words (p)9 transfer to another, a right of, or

(a) Apte, 40. (/) 22 G. 3. c. 82. f. IT. 25 G. 3.

(*) Ante, 75, &c. «• 61« ^nnon list rated to I*od Tax,

(e) Ante, 118 to 155. 29 G. 3. c. 6. i.78. 35 G. 3. c. 2.

(rf) Ante, 176 to 193. •• **• Peowoof to petaona who have

(«) Ante, 203, &c. aenred abroad. 50 G. 3. c. 117. u 13,

(/) Ante, 236 to 241. ' *• Accumulation of amart prevent tcL

(*) Ante, 282 to 284. 44 G. 3. c, 80. s. 2.

(A) Ante, 253, fee. <«) Ante. 203, fee.

(i) Plowd. 236. Vaogh. 62. Co. (») Ld. Raym.213, 14.

Lit 19. 7 Co, 12. See the banker^ (o) Co. lit. 214, n. Chittyoo B.

one, 5 Mod.'46. Comb. 270. Skin. 5th ed. 7, 8.

601, pi. It. 11 St. Tr. 136. (j) 3 Lev. 135. 12 Rep* *.

(A) Ante, 201, 2. '

c c 2 chose

S86

Crown Grants. [Ch.XVI. Sec.L

chose in, action against a third person (a). But this rule ap-
pears to relate only to causes of action for debt and things cer-
tain; not to a right of action for trespass or uncertain da-
mages (b). And it may be doubtful whether it relates to choses
i:cai, as rights of action, &c. relative to land, so as to vest them '
at law in the grantee (c). It seems, also, part of a debt cannot be
assigned to the King (d).

But the assignment of debts to the Crown having been great-
ly abused, it was enacted, by the statute 7 Jac. 1. c. 15, (e)9
that " no debt shall be assigned to the King, by or from any
debtor or accountant to his Majesty, other than such debts as
did before grow due originally to the King's debtor or account-
ant bonajide ; and that all grants and assignments of debts to
the King, which shall be had or made contrary to the true in-
tent of that Act, shall be void." And even at common law, the
assignee of a chose in action from the Crown has not the pow-
er of assigning it to another subject, so as to enable the latter to
sue in his own name {/).

The King may also, in general, grant a condition in future,
a matter depending on a contingency, quando accident^ or a
mere possibility (g) ; or convey in fee, with a condition against
alienation, by the grantee (*). But the King cannot grant land
« when it shall escheat (* ) ;' or the next lapse of the church of
Z>. (before it happens) ' when it shall happen (k).' But his
Majesty may, in some cases, discharge a subject of liabilities not
yet accrued (I). So that he may grant that a spiritual man shall
be discharged of tenths, " when they shall be granted" by the

(a) Y. B. 31 H. 7 . 19. Bra Ah. Pre-
rog. 40. Co. Lit. 232. b. n. 1. 1 Dyer,
1. pi. 7. 30. b. pi. SOB.- Cro. Jac. 17,
82. 17 Vin. Ab. 88. Prerog. M. b.

(b) Vin. Ab. ubi supra. Bro. Ab.
Chose in Action, pi. 11.

(c) Vin. Ab. Bro. Ab. Patents, pi. 98.
Cbose in Action, pi. 14. 11 Co. R. 12.
See Leon. 21. 3 Leon. 198: 17 Vin.
Ab. 79. tit Prerog. G.b. 3. in which it
is said, that the King may, by special
words, grant a right of entry and a real
action.

(rf) Owen, R.2.

(e) See Hob. 258. And as to the re-
medy, &c. see ante, 322} Extent*.

(/) Cro. Jac, 180. Skin. 6, 26.

(g) Jenk. 210. See the cases, Com.
Dig. Grant, G. 1 . and Assignment, D.
17 Vin. Ab. 145. Prerog. I. c. 2. and
Ibid. 83. M, b. 3. Bac. Ab. Prerog.
F. 3.

(k) Ante, 386, note (A).

(i) T. Raym. 241. 1 Chalmers1 Col-
lection of Op. 131. 2 Lev, 171. Or
forfeited property before forfeiture.
Ante, 385.

(*) Hob. R. 208. See ante, 253, fee.
as to grants of property seized under
offices.

(/) Bro. Ab. Patents, pi. 53* Y. B.
6H. 7.4.

clergy ;

Ch. XVI. Sec. II.] Crown Grants.

389

clergy (a) ; or that the grantee shall not be impeached of a cer-
tain recognizance he may subsequently enter into (6).

The King cannot, it is said, grant an annuity, for his per-
son is not chargeable ; but he may if it be charged on any of his
Majesty's possessions (c).

Grants of exemptions having been treated of in a previous
chapter (d), it may be sufficient to add in this place, that the
King may by grant exempt a subject from tolls in his Majes- •
ty*s markets {e\ and from impositions and charges due person- '
ally to himself; but not, it seems, from charges imposed
by Act of Parliament for the general interests of the coun-

SECT. II. "

Haw Grants from and to the King are to le effected.

It is a clear rule, that, as well for the protection of the King as
the security of the subject, and on account of the high consi-
deration entertained by the law towards his Majesty (g), no
freehold interest, franchise (h)9 or liberty, &c. can be transfer-
red from the Crown but by matter of record/ . This is ef-
fected by letters patent under the great seal, which is a record

(a) Bro. Ab. Patents, pi. 53. Y. B.
6 H. 7. 4. 9 H. 6. 62. For this, it is add-
ed, sounds in covenant, and against
the King no writ of covenant lies, and
therefore the grant is good.

(A) 19 H. 6. 64. Vin. Ab. Prerog. T.
c. See ante,- 91, that the King cannot
discharge a recognizance for the secu-
rity of a subject.

(c) Salk. 58. pi. 1. Freem. 331.

(rf) Ante, 80.

(*) Sir W. Jones, 119. Com. Dig.
Prerog. D. 33. Ante, 195.

(/) Ibid. Ante, 20. 17 Vin. Ab.
150, 1. Prerog. K. c, L. c. 2 Rol. Ab.
199. Vaugh. R. 161. Sav. 52.

(?) Dr. and Stud. 61, d. 8.

(A) Even within the Duchy of Lan-
caster, and notwithstanding the statute
3 H. 5. and 97 H. 8. c. 40, which only
relate to possessions, &c. as lands there-,
in ; not to franchises created de novo*
2 Lutw. 1233, .1237. 17 Vin. 73. Com.
Dig. Patent, C 4.

(0 2 Co. 16, b. 17 Vin. Ab. 70.
Prerog. C.b. Com. Dig. tit. Pates' .
2 Bla. Com. 346. Pardon must be un-
der Great Seal. 1 B. and Pul. 199. Can-
not convey by bargain and sale, cove-
nant to stand seized or by lease and re-
lease, ante, 378. Grants of offices,
ante, 78.

and

390 Crown Grants. [Cb. XVI. Sec. IT.

and evidence ^rs^, without further proof (a); and that such seal
may not be affixed without due caution and consideration several
preliminary steps are requisite. Grants or letters patent must
first pass by bill (b), which is prepared by the Attorney
and Solicitor-General, in consequence of a warrant from the
Crown (c), and is then signed, that is, subscribed at the top,
with the King's own sign manual, and sealed with his privy
signet, which is always in the custody of the principal secretary
of state; and then sometimes it immediately passes under the
great seal, in which case the patent is subscribed in these
words, per ipsum regem, by the "King himself (d)." Other-
wise, the course is to carry an extract of the bill to the keeper
of the privy seal, who makes out a writ or warrant thereupon to
the Chancery, so that the sign manual is the warrant to the
privy seal, and the privy seal is the warrant to the great seal,
and in this last case the patent is subscribed, per breve de pri-
vate sigillo, " by writ of privy seal (e)" But there are some
grants which only pass through certain offices, as the Ad-
miralty or Treasury, in consequence of a sign manual, with-
out the confirmation of either the signet, the great, or the privy
seal (/).

It also appears {g), that chattels real can in general only
pass from the Crown under the great seal. But it is a general
rule, that personal things, as goods or choses in action, or the
discharge of a debt, need not be granted by the Crown under
the great seal, but may be legally transferred under the privy
seal (A). Various other matters of small importance may also
be done without the great seal (i) ; and, it seems, that land may,

• «

(a) See 3 and 4 Ed. 6. c.4. and 13 El. 99.

c 6. Peake, Ev. 4th ed. 31, note c. (rf) 9 Rep. 18.

Pkafipfl, Et. 1 ed. 173, 4. There are (e) Ibid. 2 Inat 555.. ,

threeaaak af which the law take* no- (/") 2 Bla. Com. 346, 7.

tice, the Great Seal, the Privy Seal, (q) Per Coke, Attorney-General, Mo.

and the Signet. 2 Inst. 554. 476. pi. 681. cited 17 Vin. Ah. 74. Pre-

. (4) See ante, 188, 9 $ grants of pa. rog. P.b. sed qu. Cro. Jac 109. Cam.

tenU for inventions. Dig. Patent, C. 3. and 2.

(0 No officer which the King hai, (A) Ibid. Rol. R. 7. Com. Dig. Pa-

nor altogether, may, *x officio, dispose tent, C. 5. S«. if without writing. Bro.

of the King's treasure, though it be for Ahr. Prerog. pi. 61 .

the honour or profit of the King him- (0 Instances, Ibid. Vin. Ab. uti su~

•elf,. 11 Co. 91. bn "They cannot pra. 2 Inst 555. cap. 6.

without the King's own warrant" Ibid.

by

Ch.XVI. Sec* III.] Crown Grants. S9J

by the course of the Court) be granted or leased under the
Exchequer seal (a).

Money, says Gilbert (£), was never issued on the great or
privy seal; and antiently there were no writs of liberate for the
payment of money on any debt due from the Crown, or any
grants made of any sums, but afterwards they were wont to
grant patents or privy seals to the Treasurer, giving him au-
thority to issue warrants for the money. The writs were an-
tiently directed to the Treasurer and Chancellor, and, there-
fore, the warrants are at present signed by the Treasurer' and
Chancellor, and mention the authority of the broad seal by
which he issues them.

Nor can the King take any freehold interest, or even a term,
for years (c), or surrender, &c. without matter of record, as a
deed inrolled, &c.(J). But, it seems, that the surrender of a co-
pyhold to the King, as lord of a manor, in pursuance of the
custom of the manor, is good (e). And the Crown may take
goods and choses in action without matter of record, either by
way of grant or testamentary bequest (f).

SECT. III.

»

Construction of :~ And when void far, 1. Uncertainty; 2. Mi*
recitals ; and herein of false Suggestions, or Deceit,

In ordinary cases between subject and subject, the principle is,
that the grant shall be construed, if. the meaning be doubtful,
most strongly against the grantor, who is presumed to use the
most cautious words for his own advantage and security. But
in the case of the King, whose grants chiefly flow from his
royal bounty and grace, the rule is otherwise 5 - and Crown

(a) Cro. Jac 109. See Com. Dig, Ibid. Vio. A. d. Subsequent enrolment
tit Patent, C. 3. 18 East, 98. has relation back, Bro. Prerog. pL 57.

(b) Hist Excheq. 143. (*) Keblc, 720.

(c) Lane, 60. (/) 40 Ass. 38. Via.' Ab.ubi supra.
(<*) Plowd. Com. 81<J, b. 484, b. 105. Bra Ab. .Preros;. pi. 36, 40, 50. 145.

Bro. Prtrog. pi. 41, 56, 93. 17 Vin. Ab. and Ibid. tit. * Done.' pi. 16. tit. Chose

171, 173. tit Preroe;. Z. c. B. IX What in Action, pi. 4. cites Y. B. 81 H. 7,

is matter of record lor this) purpose, 19.

grants

392

Cram Gritnts: [Cb.XVI. Sec! fill

T

grants have at all times been construed most favorably for the
King, ^rhere a fair doubt exists as to the real meaning of the
instrument, as well in the instance of grants from his Majesty,
as ih the case of transfers to him (cr). As if the King grant u
manor purchased by him, with all franchises belonging, &c*
the franchises in the hands of the feoffer, and which became
merged in, or re-annexed to, the Crown, by the King's pur*
chase, do not pass (b). So, if the King grant a manor with aB
lands accepted or reputed as parcel, nothing passes which is
not parcel in truth and of right, and which had not immemo-
rially been so (c). Nor will a grant of * mines, amerciaments,
and escheats,' pass royal franchises of that description (d) ; or a
grant of bona et catalla sua, pass specialties (e) ; or a grant of
bonafelonum pass the goods of a suicide^ ). " Because general
words in the King's grant never extend to a grant of things
which belong to the King by virtue of his prerogative, for such
ought to be expressly mentioned (g)" In other words, if un-
der a general name a grant comprehends things of a royal and
of a base nature, the base only shall pass (A).

It is indeed expressly provided by the statute de prerogativa
regis, 17 Ed. 2. st. 2. c. 15. (f), that "when our Lord the King
givetfa or granteth to any, a manor or land with the appurte-
nances, unless he make express mention in his deed in writing,
o£ knight's fees, advvwsons of churches and dowers, when they
happen, belonging to such manor or land, then at this day the

(<r) 2C6. R. 24. 5 Ibid. 56. Plowd.
843. 11, a. 1? Vin. Ab. Prerog. O, c.
aftd O. c. 2 ; Y. c. 5. Com. "Dig. Grant,
CT.*12. 5 Bac. Ab. 602. Prerog. P. 2.
2*Bla. Com. 347. 2 Rol. R. 219. At
£6 explaining an old charter by contem-
poraneous usage, 3 T. P. 279, 238. n.
4 Ibfd. 421. 4 Bast, 638. 5 Taant.
>rt2. Peak. Ev. 4th ed. 331 .

(b) 2 Rol. Ab. 184. 1. 50. 193. 1. 30.
The King granted to a ranger of a fo-
rest '* all manner of wood blown or
thrown down by the wind, and all dead
•wood, and the boughs and branches of
trees and wood in the forest, cut off or
ihVowti down ; and hoosc>bote and fire-
Jbote, for himself and the foresters and
Ifttgttift," It was adjudged, that under

these words, branches cut from trees
felled for his Majesty's use did not
pass. Anstr. R. 592.

(c) 2 Rol. Ab. 186. 1. 25, 30. Bat if
the King grant a messuage and all
lands ' spectantes out cum eo dimissas ;'
lands enjoyed with it for a convenient
time pass. Cro. Car. 169.

(rf) Plowd. 336. Dar. 1 7, 57.

(e) 2 Rol. 195.1. 20. See Vin. Ab.
Prerog. E. c. See 1 Bla. Rep. 120.

(/) IT Vin. Ab. 130. tit. jPrerog.
C. c.

(g) Ibid. Rol. Ab. 195, £. Cmd.
Dig. Grant, G. 7.

(h) 1 Bla. R. 118.

(ij See 17 Vin. Afc 131, 2. Pferog.
C.c. 10 Co. 64.

* King

Ch.XVI«StatiL3 Cromn Grants.

99$

King resetreth to himself such fees, advowsons and dowers,
albeit that among other persons it hath been observed other-

wise.

tt

It is also a branch of this rule, that though in the case of a
subject's grant, many incidental matters are presumptively
admitted, (as if a feoffment of land were made by a lord to his
villein, this operated as a manumission (a) ) ; still in the case of
a Crown grant it shall not enure to any other intent than that
specified in the grant : so that if the thing granted cannot pass
without implying something not granted, it shall be void rather
than operate to two intents not noticed in the grant (b). As if
the- King grant land to an alien, it operates nothing; for such
grant shall not also enure to make him a denizen, so that he
may be capable of taking by grant (c). Nor shall a grant of
lands to a felon amount to an implied pardon (d). But if the
King grant a messuage and all lands spectantes out cum eo
dimissas, lands enjoyed with it for a convenient time pass (e). •

But the rule that grants shall be construed most favorably
for the King, is subject to many limitations and exceptions.

In the first place, no strained or extravagant construction

^is to be made in favor of the King. If the intention be obvious,

royal grants are to receive a fur and liberal interpretation

accordingly (y). And, though the general words of a grant may

be qualified by the recital (g); yet if the intent of the Crown be

(«) Lit. 8. 206.

(b) 5 Leon. 243. l7Vio. Ab. 142.
Prerog. G. c. 2 Bla. Com. 347. 1 Bla.
B. 118. The King's grant shall not
enure (to his special prejudice) to two
intents, viz. to a demise of the land,
and also to a suspension of his condi-
tio* by which he may defeat the estate
for life, and other estates, as it should
be in the case of a common person ; or
to a demise in respect of his present
estate per outer vie, and also to a con-
firmation of his condition by which
otherwise he might defeat all, as it
should be in the case of a common per-
son j for the grant of the King shall be
taken according to his express intention
comprehended in his grant} and shall

not extend to any other thing by con-
struction or implication, which does not
appear by his grant; and therefore in
such cases the King ought to be truly .
informed, and be ought to make ape*,
cial and particular grant, which by ex-
press words may enure to all such seve-
ral intents as are desired. 7 Rep. 14, a.
So where the King has , two rights in
him, he cannot exclude himself of boto,
without special words. Ibid. 14, b.

(c) Finch, L. 110. Bro. Ab. tit. Pa*
tents, 62. 5 Rep. 56.

(<!) Ibid. 1 Bla. Rep. 118.

(e) Ante, 392, note (c).

(/) 2 Inst. 496, 7,

(g) 4 Taunt. 593. 2 M. and Salw.
18.

plainly

$94 Crown Grants. [Ch. X YL Sec III.

plainly expressed in the granting part, it shall enure accord-
ingly, and shall not be restrained by the recital (a).

In the second place, the construction and leaning shall be
in favor of the subject, if the grant shew that it was not made
at the solicitation of the grantee, but ex speciali gratid, certd
scieniidy et tnero motu regis (b). Though these words do not of
themselves protect the grantee against false recitals, &c. (c)>

In the third place, if the King's grants ar? upon a valuable
consideration, they shall be construed strictly for the patentee
for the honor of the King (d).

So where the King's grant is capable of two constructions,
by the one of which it will be valid and by the other void, it
shall receive that interpretation which will give it effect (e) ;
" for that will be more for the benefit of the subject and the
honor of the King, which ought to be more regarded than his
profit (/)." As if there be a grant to discharge one from the
collection of tithes granted per clerum Angli<Ey he shall be dis-
charged if the grant be per clerum provincue Cantuariensis (g);
for it is not usual to have a grant by both provinces toge*
ther (A)»

In considering the cases in which a royal grant may be
ineffectual on account of mistakes, deceit, &c. it may be proper
to divide the sutyect into the following branches: 1. Uncertain*
ties. 2. Misrecitalsg and herein of false suggestions and deceit*

1. A decided uncertainty will avoid a grant from the Crown,
not only as against the patentee, but also as against the King,
because it raises a presumption of deceit (i). As if the King
grant a piece of land, parcel of a waste, &c without designating
what piece (k) ; or grant land or a rent, in which there may be
various interests (/), without limiting or specifying any parti-
cular

(a) 10 Co. 1 12. (/) Com. Dig. Grant, 6. 12.

(6) Finch L. 100. 1 Rep. 40. 10 (g) Y. B. 21 Ed. 4. 48, b. 2 R. 2, 4.

Rep. 112. Com. Dig. Grant, G. 12. (A) Ibid.

Vin. Ab. Prerog. E. c. 3. (*) Bulttr. 10. 17 Vin. Ab. 140.

(0 10 Co. Rep. 112. 3 Leon. 249. Prerog. F. c 6 Bac Ab. 602. Prerog.

2 Salk. 561 . F. 2. Co. Entr. 384.

(d) 2 Inst. 446, 7. 6 Co. 6, a. 10 (*) Leon. 30, pi. 36. 12 Rep. 86.
Co. 65, 5 Bac. Ab. 604. (/) Because if the thing granted be

(e) 9 Co. 131, a. 10 Co. 67, b, 6 such of which divers estates cannot be
Co. 6. limited, but one estate only is incident

thereto,

Ch. XVI. Sec. lit] Grown Grants.

396

cular estate in the gift; and in this case the patentee takes no
interest whatever (a). So in the case of a grant of debts which
have accrued to the Crown, to the amount of a certain sum,
within a limited period,' without saying what debts (b); of a
grant of the custody of all the King's houses, not saying
which (c) ; of a grant of bona felonum, not stating in what
manor or county (d) ; and of a grant that T. S. shall not be
sheriff without saying " of what county" or *« of any county in
England (e)" And in granting tolls, the amount intended
to be granted must not be left a matter of doubt and uncer-
tainty (/).

But the rule id certum est quod cerium reddi potest obtains,
even in the case of the Crown ; and therefore if the grant refer,
or has relation, to that which is certain, though it be not mat-
ter of record but mere matter of fact or in pais, it is suffici-
ent (g). As if the King grant to a city all the liberties, which
London has (A) : or grant a manor habencT to the grantee and
his heirs * adeo plene et integre, as it came into the hands of the
King by the attainder of T. S.;' or * as is contained in such
letters patent (*);' or 'with such privileges and franchises as
the Dean and Chapter of Saint Paul's, &c formerly enjoyed
therein (k) ;' or ' as belonged to the manor when pur-
chased (/).' And though, as before observed, advowsons, &c
do not pass under a grant of a manor cum pertinentiis(m)t
yet advowsons appendant, &c may pass without express words
if there be any words of relation («). Many other instances of
this rule are to be met with in the old books (o).

thereto, which the law limits without
any limitation made by the grantor, of
•ach thing the grant of the King can-
not be doubtful or uncertain, nor can
the King be deceived, nor can he err ;
for error est in 610/0, and no error can
be where there is only one way to be
taken. Dav. Rep. 45, a.

(a) Ibid. Rol. Ab. 845. Dar. 35, 45.
IBls-R, U8.

(b) 12 Rtp. 66.

(c) Jones, R. 293.

(si) Con* Dig. Grant, p. 6.
(«) Y. *. 2 R. 3. 7. Bro. Ah. Pa-
tents, pi* 92* But a grant of the stew-

ardship of several matters by name,
without mentioning in what county, is
good. 9 Co. 42, 47. a. 4 Mod. 279.

(/) Ante, 195.

(g) Com. Dig. Grant, 6. 5. Vin. Ab.
Prerog. R. c.

(h) Y. B. 20. H. 7. 7. b.

(i) 10 Co. R. 63.

(*) Cro. El. 518, 13.

(/) 2 Rol. Ab. 184. 1. 54.

(m) Ante, 392,3.

(n) 10 Co. 64. Plowd.,951. Com.
Dig. Grant, 0. 5.

(0) Com. Dig. Grants G.*5.

Where

896 Crown Grants. [Ch. XVI. Sec. IIL

Where a particular certainty precedes, it shall not be de-
stroyed by an uncertainty or a mistake coming after (a).

2. With respect to mis-recitals and false suggestions or deceit,
these also will, in certain cases, invalidate a grant from the
Crown (J).

And here it may be noticed, that to prevent deceitsi it is In
general necessary that a grant by the Crown of any reversion
should recite the particular previous term estate or interest,
still in esse, and which is of record (c). And even if the King
(by matter of record, as is necessary), lease land to J3., arid
afterwards grant him a new lease, without reciting the first,
the last charter is void, without regard to the effect it may have
on the first (rf). But the grant of a copyhold need not recite
that it is a copyhold (e). And if the King lease strictly at
will, a second lease at will to another need not recite the
"first (jO- So if he lease part of a manor, and afterwards lease
the manor to another, it seems the first grant need not be
rtecited (g). So in the case of a second grant of a mere charge
or trust, without fee or profit (h). And the recital, when ne-
cessary, need not specifically designate the previous charter,
or mention its date, but may notice it by general expressions ;
nor is a mistake in the recital of the date of the first grant ,
'fetal (/). And if the King grant land, which is in lease of
*ec6rd, without recital of the first grant, but with these words
u notwithstanding that* it be in lease for life or years, of record
*br otherwise," or other equivalent expression, this is a good
grant, and will pass the reversion; for many inconveniences
might arise, if the necessity of reciting previous interests could
in no shape be obviated (£). And, on the same ground, if land
be in lease of record, and the King, without reciting the lease,
grant thfe land, and further grant * the reversion thereof ex-
pectant on any estate for life or for years/ this is good (I).
> ■ §

o* <*) Cro. B). 84, 48. Yehr. 42. 3 (e) 2 Sid. 139. ,

\1ao»;16V148. SOodb.423. 10 Co. (/) Bro. Patent, 2.

Ilfl. ,. ' . (g) 1 And. 46.

.«<•*) fl.Bta Oorau348. •' (h) Bro. Ab. Patent, 2.

(*) .1? .ViniAtfc 108, Prwog. Q»b. 2. (i) 17 Vio. Ab. 110, Prerog. B. b. i

Com. Dig. Grant, G. 10, , (A) 4 Co. 35, b. .

(rf) Cro. £1. 231, (0 Ibid.

The

Ch. XVI. Sec. III.] Crwm Grants.

397

The general rule appears to be that the grant need not reeite
the King's title (a) : and it seems that if after reciting certain
facts a charter draw as a conclusion that the King has a cer-
tain estate, which is neither correct in law or feet, this false

4

conclusion, not being any part of the consideration of the
grant, and not having arisen from the misinformation or fault
of the grantee, but being the surmise and mistake of the
King, shall not avoid the charter (ft). So if the King mis-
takenly surmise in his grant that he holds by escheat, whereas
the lands are his inheritance; or grant in consideration of sup-
posed services (c) ; or- call the grantee a knight, he not being
one (d) ; such grants are good notwithstanding these mistakes*
.But it seems that royal grants are always void where the King
evidently mistakes his title in a material point to the prejudice
of his tenure or profit (e).

So if the recital of a thing in a patent which sounds to the
King's benefit be false, the grant will be void; for the King
is in point of law deceived (/). As if the patent recite a grant
of a reversion which was void, and the grant be to commence
.after it {g): if it recite an inquisition of his presentation; and
he then confirm it; where the presentation was repealed (A):
or if the King lease for twenty-one years after a former lease
to A. determines ; which was before surrendered (*). So if the
King grant a greater or different estate than he could effectu-
ally transfer (A)- And if the false recital, &c. arise from the
suggestion of the party applying for the grant, such grant will
be void. As if the grant be founded on a false suggestion,
that the land be of less value than it is (/) ; or that the King
had it by escheat when he had not (tn). And if any thing inen-

(o) 1 Co. 4$, b. 51, a. Mo. 318, 20.

(*) 6 Co. 55, a.

(c) Plowd. 455.

(rf) Ld. Ray m. 292. Skinner, 651.

(#) 5 Bac. Ab. 603. Prerog. F. 2.

(/) 2 Co. 54. 1 Co. 43, a. Dyer,
352, a. 11 Co. 90. 2 Rol. Ab. 188.
1. 12.

(g) 11 Co. 4,b. 2 Rol, Ab. 188.
1.32.

(A) 2 Rol. Ab. 188. 1.45.

(0 3 Leon. 5, 6.

(4) See the Instances, Com. Dig.

Grant, Q. 8. 2 Bla. Com. 348.

(/) 2 Rol. Ab. 188. 1. 15. Yelr. 18.
See Lord Hardwicke's observation on

Lord Baltimore's information to the
Crown, that certain lands in the plan-
tations were uncultivated and possessed
by barbarians, previous to his obtainiag
a charter, whereby the King might be
involved in disputes, the land being
possessed by Dutchmen and Swedes, &c.
1 Ves. sen. 451.
(m) 2 Rol. Ab. 188. 1. 20.

tioned

398 Orvwn Grants. [jOuXVLSec.HI;

tioned as the consideration of the grant, or which sounds for the
benefit of the King, (be it executed or executory* matter of
record or in pais,) be false, the King is deceived, and the
grant will be void (a). As if the King grant in consideration
of the surrender of a prior interest or estate ; when the sur-
render was only in appearance (£) ; or conditional (c) ; or the
whole was not surrendered (d). So if his Majesty grant, " in
consideration of a grant or surrender by an husband and wife;"
for the wife could not surrender (e) : " in consideration of a
surrender ;" when part was leased to another (f) : «« in consi-
deration of an antient rent of 5/. 16s. 8d" when the rent was
6L but 8s. 4tf. allowed for payment at the exchequer; for the
rent here is the consideration (g) : or " in consideration of the
surrender of a lease ;" and the lease was void (h). But it if
said, that if the King in consideration of 20/. paid, grant; it
is sufficient without shewing ths>t it was paid: for it is -a per-
sonal thing executed, and accepted by the King (*). Or, in
consideration that the grantee shall repair ; if the grantee does
not repair, the grant is not void, for the King may have cove*
nant (i). So if the King grant, in consideration of a surrenr
der ; it is sufficient, though the surrender was not inrolled till
after the grant; for the surrender was good, though not com-
pleted (/). So, if the King be misinformed, but not deceived*
it will be good : as, if he let land, which is recited to be IQL
per annum* when it was 2Q/. rendering 20/. per annum (w) : if
he recite land to be concealed, when it was not: where it ap-
pears tha<t he Intends a grant of the land, though not con-
cealed (n) : if he grant the manor of B. quod manerium fuit
seisUumin manus nostras, fyc. though it was not so (o) : or, thg
office of parker of B. quod H. habuit ; for it was added for the
more certainty(j?) : or the manor of D. quod fuit in tenura de
B. when it was not {q) : or, a manor and advowson, adeo plene

(a) 5 Co. 94, a. 2 Rol. Ab. 188. ]. 25. (A) 5 Co. 94, a.

199. 1. 30, 50. Lane, 75, 109. (i) 10 Ibid. 67, b. 2 Rol. Ab. €00.

(ft) Dyer, 352. J. 10.
(e) 2 Rol. Ab. 409. 1. 52. (*) Ibid. 1. 5.

(d) Dyer, 352. 5 Co. 94, m. 2 Rol. (0 Hob. 221.
189. 1. 35. Ibid. 1. 26. 45. («) Yd. 48.

(e) Hob. 223. 2 Rol. Ab. 199. ]. 45. , (n) Sal. 561.
(/) 2 Rol. 188. 1. 25. Line, 75, (o> 10 Co. 113, a.

109. (p) Ibid.

GO Yd. 43, 4S, . (f ) Ibid..

> '• as

Cb.XVI.Sec.IV/] Crown Grants.

$90

as we by any means had it cuidam architpisccpo dudtm spectan'j
where die archbishop had the manor, but not the advowson(a) :
•or, if he grant lands, all which are of such a value; tlraugh
the value be misrecited, if there be a non obstante of the mis-
recital of the value (£).

■^^

SECT. IV.

4. Of the Bights and Liabilities of the Grantee.

In the case of lands the grantee does not by taking them
from the Crown acquire any particular privileges. He is not t
thereby protected against the common law remedies and rights
which others may possess in respect of die property, however
such remedies and rights might.be impeded whilst the King
held it (c) : nor shall he take advantage of the maxim mdkm
tempt* occurrit regi (d). The right of the grantee of crown
lands to distrain, and to use crown process, has been already
noticed (*).

The assignee of a chose in action granted by die Crown (J),
may either sue in his own name, or use the King's name, and
the prerogative process; though the assignment contain ltd
words expressly enabling the grantee so to do (g).

If the King grant wrecks his privilege of going over another
man's land to take them passes to the grantee (h). ' '

The right of a grantee to a scire facias to repeal grants, in-
jurious to his own, has been already mentioned' (i).

(a) 2 Mod. 1.

(A) Hardr. 232.

(c) Ante, 340, adfl note (b). 342.

(<*) Popb. 26.

(«) Ante, 209.

(/) Ante, 387.

(g) Owen, 113. Cra. Jac. 82, 179.

Dyer 30, and 1 pi. 7, 8. Sar. 2, 133.
1 P. Wins. 252. 17 Vin. Ab. 96. tit
Prerog. M. 69. 5 Bac. Ab. 606. Pre-
rog. F. 3.

(A) 6 Mod. 149.

(«) Ante, 331.

SECT.

400

Qrwm Grants. [Ch.XVL Sec. V,

SECT, V-

Of revoking or avoiding the Grant.

When royal grants are void, a scire facias is in general re*
quisite (a): but by statute 1 Ann. st. 1. c. 7« s. 7.' for restrain-
ing grants of the lands and revenues of the Crown, grants
contrary to that act shall be void without any inquisition, or
scire facias, or other proceeding.

The grants of the King when valid in general bind him,
though without consideration, as subjects are bound by their
grants (b) : except in cases where a mere authority, licence or
exemption is given without an interest ; as in the case of a li-
cence to go abroad when the party is recalled ; or the grant
of an exemption from impress (c). And, though the grant of
a mere licence or authority from the Crown (rf), or a grant
" daring the King's will (<•)," is determined by the demise of
the Crown; itisxlear that in other cases where an interest
only is transferred by the Crown, the King's successors arc
bound by it, though they be not mentioned in the grant (f) :
and this even on a grant to a college to be discharged of
toU(g).

(a) See as to this, Index, tit. Scire
facias. Ante, 390. 250. 38.

(*) I4.Faym.32. Anta,1 19. 125. 132.

(c) Ante, 24. 48, 5 Bac. Ab. 526. 16
East, 165.

(d) Hardr.442. But not an authority

coapled with an interest, Freem. 331.
17 Yin. Ab. 90.

(e) Mo. 176. Com. Dig. Grant,
G. 3.

(/) Ibid. 1 Sid. 6. Haidr. 445, 4.

(g) YeW. R. 15.

CHAP.

CtoXVIIj Qftlie King's Family and Councils. 401

CHAP. XVII.

Of the King's Family and Councils*

The Queen of England is either — 1. Queen regent, regnant,
or sovereign, that is, the Queen reigning in her own righvand
holding the Crown as her own inheritance, whether married or
not. 2. The Qjieen consort, that is, the wife of the reigning
King ; or, S. The Queen dcmager, in other words, the King's
widow (a).

1. A Queen regent stands in all respects in the same situa-
tion as a King of England, is entitled to the same rights and
prerogatives, and subject to the same duties (b). Her mar-
riage does not diminish her powers in the slightest degree ;
even her husband would be her subject, and might be guilty
of high treason against her as his sovereign (c).

2. The King's consort possesses of course no share of the
kingly authority; and as the various duties, responsibilities, and
cares of government, are fully sufficient to occupy the time and
attention of the King, the law, as a further comment on the
principle, that the royal functions should be unembarrassed by
minute considerations, has wisely freed his Majesty from the
necessity of interfering with the management of the domestic
affairs of his consort ; by rendering her in legal contemplation
a, feme sole, by absolving her from the many, and indeed almost
universal, restraints and incapacities to which other married
women are by their marriage exposed (d). She may have a
separate property either in lands or goods, and may purchase,
sell, lease, or devise them (e). She may even take lands or

debts

(a) 1 Bla. Com. 318. 40 G. 3. c. 88. s. 8, 9. By tint statute

(6) Ibid. 190. 1 Mar. si, 3. c. 1. to prevent doubts on this subject it is

(c) 1 Hal. P. C 101,106. Ante, expressly enacted, that any queen, con-

11, 13. sort, may daring the King's life by deed

(<f) Finch, L.86. 17 Vin. Ab. 204, under her hand and seal attested by

tit. Prerog. B. C. Com. Dig. Roy. F. two or more witnesses ; or by will at-

Fortesc R. 412. 1 Bla,. Com. 317, 18. tested by three witnesses ; grant, give,

(*) Ibid* And see recital of 39 and dispose of, or devise any tenements her

D D property:

402 Oftiie King's Family and Councils. [Gh*&YIL.

debts (a) by grant from the King (b);- or give a bond or other
specialty (c). And her pre-eminence and distinctness of cha-
racter hold in all legal proceedings : so that her Majesty may
sue or be sued alone (d) ; and has her separate offices and offi-
cers, and legal advisers (e) ; and, it appears, that a grant of the
King to be a servant or officer to the Queen is void (y). *

The life and honour of the Queen are peculiarly regarded and
protected by the law. It is high treason to compass her death,
or violate or defile her person ; and she is a participator in this,
high offence, and the consequent punishment, if she consent to
the illicit connexion (g).

So, in respect of the high importance of the Queen, Acts of
Parliament relating to her are to be deemed public Acts, and
to be noticed accordingly (A).

In general, the Queen consort is not exempted from laws
operating on other subjects of the King (t) ; but in many in-
stances the law has expressly granted her several immunities.
Thus the Queen consort pays no toll (k); and cannot be amerc-
ed (/), or arrested; nor is she obliged to find pledges deprose-<
quendo (m); or bound by the statute of Marlebridge, for driving
a distress into another county (n). But the servants of the
Queen consort or Queen dowager are not privileged from
arrest (o).

There are also several antient revenues and perquisites of the

property : and may by her will bequeath
her personalty, a* if she were unmarried,
Proviso as to disposal of palaces, Sue.
of the King fa right of the Crown vested
in the queen consort, for her life as a
jointure or otherwise. In Wood's Inst.
22. ; 8th ed. it is said, " both the real
and personal property of the queen
consort go tothe Kiogafter bet decease,,
if she do not in her life-time dispose of
them, or bequeath them away by will."

(a) 17 Vin. Ab. 205. tit Prerog. B.
e. pi. it.

(A) Ibid. 1 Bla.Com. 219.

(<?) 2Rbl. Ab< 213. 1.25.

(rf) Com, Dig. Action, B. 2. Co. Lit.
133. Form of proceedings by and
against the Queen. See 2 Chitty on PI.
55, 3rd ed. She shall not be sued by
petition as the Xing is, ante, 341. 1 H,

4. f. 7. Bro. Ab. fconabHity, pi. 60.
Staondf. Pra. 75, b. 2*. whether the
King may by grant give her the prero-
gative remedies to recover her debts,.
Mod. 247. Com. Dig. Roy. P. 1.

(0 1 Bla. Com. 2)0.

(/) See 2 Hoi. Ab. 213, 1. 42. Com.
Dig. Roy, F. 1.

(g) 1 "Bla. Com. 222.

(h) Finch L. 86. 8 Rep. 28.

(ijt The Queen is a sole person by
the common law, but not to all intents,
per Brian. Bro. Ab. Aid, Del. Roy. pL
96, cites 3 H. 7. 14.

(*) Co. lit. 133.

(0 Finch, L. 185.

(m) Co. Lit. 133, a.

(*) Ibid. 133, b.

(a) I Keb. 842, 877.

Queen*

Ch-XVIL] Of the Kings Family and Councils. 403

Queen, as aurum regitur, or Queen's gold, being a portion of
monies voluntarily paid to the King by any subject, by way of
offering or fine for any franchise or liberty granted him, &c {a) ;
rents or reservations out of the demesne lands of the Crown (8);
and (though the addition may be deemed ludicrous) her Ma-
jesty's share {that is, the tails) of whales, but not of sturgeons,
taken on the coasts (e). But as these sources of emolument
have long since fallen into decay, it will not be necessary to
make any further mention of them.

S. Notwithstanding the death of the King, his consort, who
thereby becomes the Qpeen Dowager, retains most of her pri-
vileges (d). But it is no longer high treason to conspire her
death, or to violate her chastity, as the purity of -the royal suc-
cession cannot be tainted thereby. She does not lose her
royal rank by marrying (e) a commoner (jf); and is entitled to
4ower though an alien born (g).

With respect to the King's children, the ddest son or heir
apparent and his consort* and the King's eldest -daughter, who
alone would inherit on failure of male issue, particularly chum
4>ur Attention* That the succession may be less open to doubt
*nd danger, it is high treason to conspire the death of either
of these high personages; or to defile the persons of either of
4he latter (*)•

The eldest son or heir apparent of the King, has, since the
time of Edward 1., who conquered Wales, been titular Prince
or Princess of Wales* But this title, and that of Earl of
Chester, which has also been usually granted to the heir

(«) 12Co, 22. Com. Dig. Boy. P. 2. covott. Per Hale, Ca. Ch. 215. Soif a

Fortesc R. 398. 1 Bla. Com. 219, Jcc. Oaeen consort grant*, it is not deter-

(6) Ibid, mined when the becomes dowagei>

(<?) Ibid. -222. Skin. IS.

(rf) 1 Bla. Com. 223. The hospital (*) Whether she can marry without

<rf Saint Katharine was founded by licence of the King seems questionable,

fileantr, dowager of King Hen. 3. with see 1 Bla. Com, 223. cites 2 lost. 1ft,

reservation of the patronage, nfr, eY<r. Riley's Plac. Pari. 72. See CaXit, 133.

*r rtginis nucede*tibus% wherefore the Hargr. note. Fortesc. R. 413.

Qaeea dowager shall always have the (/) 2 tnst. 50. 1 BJa. Com. 229.

nomination of a master, when there is (g) Ibid. Fortesc. R. 420.

net aQacsn consort in esse, Ca. Ch. 215. (A) 1 Bla, Coat, 223.
Akin. 15. So though there be a Queen

t> » 2 jpparant,

404 Of the King's Family and Councils. [OuXVIL

apparent, do not necessarily vest in him as such, but arise
from special creation and investiture under the great seal (a).

The title of Duke of Cornwall, and the inheritance of the
duchy of Cornwall, were first created and vested in Edward
the Black Prince, by a grant in the eleventh year of the reign
of Edw. 3. This grant has been held to be an Act of the
legislature, or a charter confirmed by Parliament, and is CQn-
sequently good, though it alter the established course of de-
scent which the King's charter cannot do (fl). Consequently
the King's eldest son, being heir apparent, is always by inhe-
ritance Duke of Cornwall, without a new creation (c). On the
death of the eldest son, the eldest surviving takes the inherit*'
ance : a peculiar descent founded on the legislative grant (d).
But it seems that as the Duke of Cornwall must be not only
the eldest son, but the heir apparent, the second surviving son
would not succeed to the dukedom, if his eldest- brother left
issue, who would be heir apparent, but that it would in such
case revert to the Crown (e). There are authorities, that the
disabilities of minority do not hold against a Duke of Corn-
wall, with respect to the duchy rights and possessions (J*). The
general rule is, that till a Prince be born, the King is seized
of all the possessions (g); but when born, the Prince is imme-
diately seized in fee; and leases, &c* by the King may be deter-
mined by the Prince (A), and he may have a scire facias for that
purpose (f). ,

The Prince has no other specific privileges over the rest of
the royal children, but he is regarded in law as partaking in
some measure of the royal dignity* " Coruscat radiis regis
patris et censetur una persona cum ipso rege{k).n And the in-

fo) 4 last 843. 1 Bui. 133. 1 Bla.
Com. 884.

(4) The Prince's case* 8 Co, Rep. 1.
By the charter the Black Prince was
created Duke of Cornwall, ' kaberuP
euUm duci et ipthu et htredum suomm
regum AngJta JMis primogenitu et dicti
loci dveihu m regno AngU* hare&Urie
ntccessurii.' Ibid,

(c) Ibid. His wife shall be endowed.
Ibid. 7.

(d) 1 Vez.894. Collins, Proceed, on

Bar. 148. 1 Bin. Com. 984. n. 19, by
Christian.

(*) Ibid. Christian's note 10.

(/) Ibid. Christian's note. Ante, 376,
and note (a). Bro. Ab. Prerog. pi. 138.

(g) Com. Dig. Roy, G,

(A) Ibid. Ca. Ch. 815. atiter, if the
King present to an advowson, his clerk
shall continue. Ibid.

(0 5 Com. Dig. 880,, 1.

(*) The Prince's Case, * Co. 88. R.
and see Hob. R. 886.

traduction

C b. XVII.] Of the King's Family and Councils. 40S

traduction to a patent in the time of Hen. 6. runs, " Ul ipsum
qui reputations juris censetur eadem persona nobiscum digno
prevemarmis kon&re> fyc." On this ground, an Act of Parliament,
(as the Act respecting the duchy of Cornwall), which relates
to the Prince, has been held to be a public law of which every
body is to take notice ; because whatever concerns the Prince
concerns the King, and whatever concerns the King concerns
every subject in England (a). " So a grant from the King to
the Prince does not make an alienation from the Crown, for
the land continues parcel of the Crown (b)"

With respect to the remainder of the royal family, only
those related within certain degrees to the Sovereign have any
particular precedence ; and even those nearly related, and
within such degrees, have, it appears, independently of their
general privileges as Peers and Peeresses, no other particu-
larity attending them, but their right to such precedence, and
are substantially in the same situation, entitled to the same
rights, and subject to the same liabilities, as other subjects
are(c). Their precedence is founded on the statute SI H. 8.
c. 10. which enacts, that no person, except the King's chil-
dren, shall presume to sit or have place at the side of the
cloth of estate in the Parliament chamber; and that cer-
tain great officers therein named shall have precedence above
all Dukes, except only such as shall happen to be the King's
son, brother, uncle, nephew (which Sir Edward Coke (d) ex-
plains to signify grandson or nepo$J9 or brother's or sister's
son. Therefore after these degrees are past, Peers or others
of the blood royal, are entitled to no place or precedence ex-
cept what belongs to them by their personal rank or dignity (r).

Of course all the children of the King, though born abroad,
are deemed natural born subjects: but whether or not this
would be the case if their father was not King at the time of
their birth may be doubtful (/). The statute 25 Edw. 3. sL.Z.
after reciting " because that some people be in doubt whether
children born in parts beyond the sea, out of the ligeance of

(a) 8 Co. R. 28. Fortesc. R. 41 1. they have any common law right to stick

(A) Com. Dig. Roy G- cites Palmer's exemptions.

R. 89. See ante, 203. (rf) 4 Inst 363.

(c) They are usually exempted from (t) 1 Bla. Com. 225.

liability to pay tolls, fcc. by particular (/) See 1 Chitty on Com. 114. ch. 5.

statutes ; but it does not appear that of subjects, aliens, &c.

England*

406 Of the King's Family and Councils. [Ch.XVH.

England, should not be able to demand * any ii
within the same ligeance or not, &c.' declares that the law ef
the Crown of England is and always hath been such, that the
children of the Kings of England in whatsoever parts they be
born, in England or elsewhere, be able and ought to bear the
inheritance after the death of their ancestors" : which may
perhaps be a legislative declaration of the law, not only as to
the inheritance of the Crown, but also to other inheritances*
However this may be, it seems to be clear at common law,, that
the King's children may inherit lands in England* wherever
such children were born, and though theymay in law be deemed
aliens. In the 17 Edw. 5. the archbishop of Canterbury came
into Parliament and demanded " si les enfans noire sen9 le ray
born beyond the sea should inherit in England, because born
out of the King's dominions and aliens :w and all the parliament
agreed, let them be born where they would, they should in-
herit (a). Without any doubt the alienage if any of the eldest
son would become extinct on his succeeding to the Crown on
the death of his ancestor.

The exact extent of the right of the Crown to regulate the
education and marriages of the royal family underwent consi-
derable discussion in 1717, that is, on the commencement of
the reign of Geo. I. (&). That sovereign proposed to the
twelve judges the following question : " whether the educa-
tion, and the care of the persons of his Majesty's grandchildren
then in England, and of Prince Frederick, eldest son of his
Royal Highness the Prince of Wales, when his Majesty should
think fit to cause him to come into England, and the ordering
the place of their abode, and appointing their governors, go-
vernesses and other instructors, attendants and servants, and
the care and approbation of their marriages, when grown wp,
belonged of right to his Majesty, as king of the realm or not?
Whereupon ten of the judges were of opinion in the affirmative;
relying principally on historical instances of the exercise of this
prerogative in the case of marriages of die royal family, and
on principles of policy and necessity, that this prerogative
should exist in the King even, in derogation of the rights of
the father of the King's grandchildren : and they considered

(a) Cotton, 58. Fortesc. R. 4£0. So though an alien horn. Ante, 403.
a Qirecn dowager is entitled to dower, (*) SceFortesc. R. 401, flee

7 that

Ch-XVIL] Of the Kh&s Family and Coicncik. 407

that; the King's right to superintend the education of his chU-
tlren and grandchildren, was a necessary consequence of his
prerogative with respect to their marriages. The other two
judges entertained different sentiments : they relied principally
on the undoubted and admitted common law exclusive right of
the father to regulate the education of his tdiildren in ordinary
cases ; they contended that the judges' minds ought not to he
biassed by considerations of political inconvenience; and in*
sisted that no legal authorities were to be found in support of
this prerogative* But they admitted that the care and appro-
bation of the royal grandchildren belonged to the King by
virtue of his prerogative, not however exclusive of the prince
their father, but only concurrently with him. There can indeed
be no doubt whatever from immemorial usage, which is evidence
of *nd constitutes common law, that the royal consent and ap-
probation should be obtained previous to any marriage with
the royal family. And in 1772 (a), the judges concurred in
opinion that the King's care and approbation of such marriage*
extended to the presumptive heir of the Crown, though to what
other branches of the royal family the same did extend they
did not find precisely determined* " The most frequent in-
stances of the Crown's interposition go no further," observes
•Sir W«Blackstone(6), "than nephews and nieces, but examples
are not wanting of its reaching to more distant collaterals."

It will be observed, that at common law the royal consent
was in no instance necessary to the validity of a marriage with
one of the royal family ; though the parties subjected them-
selves to severe punishment for this high contempt of the royal
prerogative (c). This defect was supplied by the act "for the
better regulating the future marriages of the royal family,"
{12 G. 9. c. 11.), by which, (after reciting that " marriages in
the royal family are of the highest importance to the state]
and that therefore the Kings of this realm have even been
entrusted with the oare and approbation thereof);" no des-
cendant of the body of G. 2. (other than the issue of princesses
married iuto foreign families), is capable of contracting ma*

(a) Lords' Jouro. 28th Feb. 1V72. to contract marriage with the King's

1 RIa. Com. 225. children or reputed children, his sisters

(A) 1 Cora. 225, 6. or aunts ex parte pater /tu, or the chiK

(r) The statute of 2S Hen. 8» c» 1 8 dren of his brethren or sisters, was re-

which made it high treason fur any man pealed by 1 Ed* & c 13.

trimony,

408 Ofthe King's Family and Councils. [Ch.XVlL

trimony, without the previous consent of the King, signified
under the great seal; and any marriage contracted without
such consent is void* Provided that such of the said descend-
ants as are above the age of twenty-five years, may, after a
twelvemonth's notice, given to the King's privy council, con-
tract and solemnize marriage without the consent of the Crowlt %
unless both houses of Parliament shall, before the expiration
of the said year, expressly declare their disapprobation df such
intended marriage* And all persons solemnizing, assisting,
or .being present at any such prohibited marriage, shall incur
the penalties of the statute of praemunire.

To assist the King in his legislative and executive functions,1
his Majesty is provided with several councils, as 1* the High
Court of Parliament. 2. The* Peers of the realm. 3. His
Judges. 4. The Privy Council (a).

K It is most probable that Parliaments (h) were originally
called together solely for the purpose of advice with the King,
on matters of state, without any pretensions on their part to
a definite right of interference, till they gradually became
a distinct and independent feature, and a substantive part, of
the constitution. At all events, however, Parliament, even at
the present day, are constitutionally, and in point of fact the first
grand council of the King, and this necessarily so in matters
of legislation. Acts of Parliament are made, as is now always
expressed therein, by the King " by and with the advice and
consent of the Lords and Commons." And it is usual to lay
before Parliament for its discussion and consideration, such
affairs and occurrences as are of weighty importance to the
state ; though such matters may fell peculiarly and exclusively
within the department of the executive authorities.

2. The Peers of the . realm owe their titles entirely to the
down* as the fountain of honours and dignities. They are die
antient Batons, or great men or captains, under the feudal
or military system; and now, as then, are appointed 1. ad eon* ■
suUndum » 2. Ad defendendum> regem (c). It is indeed not only
the duty, but (so far is that duty carried in law) the right of
Peers to demand an audience of the King, that they may sub*

(0) Co. Liu. J 10, a. 1 Bla, C. 227> country, Com. Dig. Hoy H.
ch. 5. See as to Ciislos Regni appointed (£) Ante* 67.

during the King's absence from the (c) Sec 1 BU. Qom. 227. <

mit

Ch.XVIL] Of the King's Famih/ and Councils. 40»

mitto his Majesty their sentiments and suggestions on state
matter* (a). This is a duty which die Sovereign himself, by
raising his subject to. so high an honour as Peerage, has en-
joined him to .perform. Indeed-so great a right has the Xing
to the services and advice of all his subjects, that it is highly
penal to refuse to accept a degree of nobility when proffered
by the Crown (b).

To protect the King, (rather than the Peer,) the person of
t|he hitter is not subject to civil process of arrest (c), even when
no parliament is sitting, because their advice and assistance is
at all times due to the King. And members of the House of
Commons (d) are also protected (e% not only during the actual
sitting of Parliament, but for a convenient time, sufficient to
enable them to come from and return to any part of the king-
dom, before the first meeting, and after die final dissolution of
it ; and also for forty days (/) after every prorogation, and
before the next appointed meeting, which is now in effect as
long as the Parliament exists, it being seldom prorogued for'
more than fourscore days at atime(g).

3. The Judges are another council or source of advice for
the King, on questions of law (A). Indeed in such questions
this is the chief council for the King; and it is also their duty
to attend the House of Lords when required to inform them
what the law is on any given question (>)•

4. The Privy Council* usually called " the Council," is Afe
last, but the most effective and important council of the King. '
This is a body of such Peers, or private subjects, as the King* -
particularly selects and honours with his peculiar toifflfidentee.*

(«) 4 Inst 53. 1 Bit. 228.

(b) Ante, 19.

(f ) Finch L. 355. 1 Ventr. 298. So
of peeresses whether by birth or mar-
riage. 6 Co. 58. Styles, R. 252. Tidd.
6th ed. 198,9; 5th ed. 192, 3. So of
Irish and Scotch peers; Tidd ubi rupra :
thongh they do not sit in Parliament.
Fiirtescue R. 165. This privilege does
not extend to criminal process, or to
attachments for contempts of court.
1 Wils. 332. 1 Burr. 631. Imp. K. B.
8th ed. 118. Tidd 6th ed. 199. It seems
that servants of peers are not privileged,
ibid. 10 6. 3. c 50. 5T.R.687.

(<f) 10 G. 3. c 50. 2 Str. 985» Tidd
5th ed. 193. ; 6th ed. 199.

(«) That is as to chrtt procatsf tbe
privilege not extending to treason,. frr,
lony or breach of the peace. 2 Wils.
159.

(/> 9 Lev. 79. 1 Chan. €as* 9$t;
S.C.butseelSid.29.

(g) 1 Bla. Com. 165. Imp. K, B»
8th ed. 118. 7 T. R. 448.

(A) 14Edw. 3.C.5. 1 Inst 110. S
Inst. 125. 1 Bla. Com. 229.

(0 4 Inst. 50. Sea Fortescne's R.
384, &c

Their

410 Qf the Km«> $ Family and Councils . [Ch.XVH.

Their number (a) depends on the royal pleasure ; they may be
appointed merely by the royal nomination, without any parti-
cular ceremony or instrument; on taking the oaths for security
*f the government^ and the test for the security of the church ;
and their qmiificatiew have not been made the subject of legal
definition) except by the statute 12 and 13 W. 3. c. 2* by which
persons born out of the dominions of the Crown of England,
unless bora of English parents, even though naturalized by
Parliament, are rendered unable to be of the Privy Council*
Their official existence depends also entirely on die King's
will ; the whole or one of the members may be immediately
removed: though to obviate the common law inconvenience
of the demise of the Crown operating as a dissolution of this
assembly, the statute 6 Ann. c. 7. s. 8. prolongs its continu-
ance for six months after the royal demise, unless sooner
determined by the successor.

The duty of a Privy Counsellor appears, says Sir Wm.
Blackstone (6), from the oath of office (c), which consists of
seven articles: — 1. To advise the King according to the best
of his cunning and discretion. 2. To advise for the King's
honor and good of the public, without partiality through af-
fection, love, meed, doubt, or dread. 3. To keep the King's
counsel secret 4. To avoid corruption. 5. To help and
strengthen the execution of what shall be there resolved. 6\
To withstand all persons who would attempt the contrary.
And, lastly, in general, 7. To observe, keep, and do all that a
good and true counsellor ought to do to his sovereign lord.

The privy council have also in certain eases a judicial ap»
pellate jurisdiction, and the powers of Magistrates.

1. The original and exclusive jurisdiction in cases relating
to boundaries between provinces in the plantations, the domi-

(a) Mr. Christian remarks, (1 Bla.
Com. 250, note 1.), that no inconve-
nience arises from the extension of their
numbers, as those only attend who are
specially summoned for that particular
occasion, upon which their ad>ica and
assistance are required. The cabinet
council, as it is called, consists of thorn
ministers of state who are more imme-
diately honoured with his Majesty's
confidence, and who are summoned to

consult upon the importautand arduous
discharge of the executive authority :
their number and selection depend only
on the King's pleasure ; and each mem-
ber of that council receives a summons
or message for every attendance;

(6) 1 Com. 230. And sen Com. Dig.
tit. Roy. £.3. An attempt to bribe a
Privy Counsellor is an indictable of-
fence. 4 Burr. 2494.

(<-) 4 Inst A4.

nion,

Ch.XVIL] Of the King's Family and Councils. 411

nidn, or proprietary government therein, is verted in die King
in council (a). They possess judicial power through the King
in all cases in which an appeal in the dernier resort lies to the
King (by So in Admiralty causes (c), being matters which
arise out of the jurisdiction of the realm (d). And they have
also jurisdiction in matters of idiotcy and lunacy (e). Hie
judicial authority of the council is usually exercised in a com-
mittee of the whole privy council, who hear the allegations and
proofs, and make their report to the King in council, and the
decision rests with his Majesty (f). But the King in council
cannot decree in personam in England (g). And it is expressly
declared and enacted, by the statute 16 Car* 1. c. 10. s.S. that
neither the King, nor the privy council have any jurisdiction or
power to take cognizance of any matter of property, real or
personal, belonging to subjects of this kingdom.

2. The privy counsellors have whilst in council the power,
by warrant, to commit offenders to safe custody, to take their
trials for high offences against the government (A). And secre-
taries of state also may, (but not by general warrants,) cause a
party accused of high treason to be arrested (*). But none of
these officers can punish, they can only inquire ; and the sta-
tute 16 Car. 1. c. 10. gives a habeas corpus^ as if the party were
committed by an ordinary justice of the peace.

Privy counsellors have also precedence and ranks as such (k) ;
and the statutes 3 Hen. 8. c 14., and 9 Ann. c. 16., ^fere
passed to protect them against conspiracies of the King's me-
nial servants to kill them, which are felonies; and any attempt
to kill them in the execution of their office, which is a capitat
offence.

(a) Ante, 28, 9 : 30, 1 ; 38, 9. (e) Ibid.

(6) Ibid. (/) Ibid. SSI, S.

(c) But now it teem* the Privy Coun- (g) 1 Ves. sen. 447.

cil disclaim all jurisdiction in Ad mi- (A) 1 $la. Com. 231. Com. Dig.

ratty causes, leaving them to the Ad- Roy. E. 5. 2 Wilson, 151, 283. t

miralty Courts, and have refused to Term R. 742. 1 Chitty, Crim. L. 26,

hear any appeals in such cases, from 34, lOt.

the West Indies. See 3 Price, R. 1 10. (») Ibid. 2 Wils 28&.

(<0 1 BUu Com. 231. (*) 1 Bla. Com. 405.

INDEX

A.

ABATEMENT.

ftft

Action by king and subject, may abate as to latter only 946

Extent does not abate by death of defendant . 275, 380

Death of one of two crown defendants . . 876

ABEYANCE.

Of a title— Prerogative as to . > . 114,15,16

ABJURATION.

Oaths of, form of .16

ABUSE (of Office).

Forfeiture of office by 85

ACCOMPLICES.

(See Pardon.) . 93,4,5,106

ACCOUNT.

With crovrn— distringas ad computandum not necessary:
extent lies 989

ACQUITTANCE.

King not obliged to offer subject . . . • 878

■ •

ACT OF PARLIAMENT.

Prerogatire at to assenting or dimnting to . . 74

414 INDEX.

ACT OF PARLIAMENT.

Page
Prerogative copyright in , r 389

What binds crown* — (See Statutes,)

ACTIONS.

What actions king may maintain . . 345

May sue where he pleases . . . ibid.

King and subject joining in an action , 245, 6

May abate for subject and stand as to king . 346

King cannot be sued by action, and why ? , 339, 40

ADMIRALTY.

King bound isy judicial sale in Admiralty Court-— (See

Courls.—Oflicct.) 336

AFFIDAVIT.

To -obtain extent, &c.— {See Extents.) . . 333

Requisite to obtain ne exeat regno .... 33

ALDERMAN.

King may exempt a person from being elected • 30

ALDERNEY, Isle of.

Prerogative as to ....... 38

ALLEGIANCE

(See Natural-born sdeject*.~Alitns.) . . .13, 14

Nature of, and why, and how due ? , 13/15, 16

JfattnuvforaMe IS

Due from inhabitants^ conquered countries 13

Due from aliens here, and why ? . 13,13

Not from alien enemy invading . . ibid.

Whether King can nullify * ibid.

Local, temporary . . , 16

Oaths of,

At common law . .... ibid.

Why required? . .... ibid.

INDEX 415

ALLEGIANCE.

Oaths of,

Form of . , .16

By whom to be administered . «

Two justices of the peace . . .17

By any one appointed by the privy ctfcmdl ibid*

Or by commissioner cinder great seal . ibid.

To be taken by every person admiUed into any {Attic

office, &c. ..... ibid.

To be administered is membeYi oT the UmvanMes

the age of 18 years .... ibid.

Also to preacher and teachers Of tepatate congregatidns ibid.
Refusal to take it to be certified to the next quarter-ses-
sions .... . Ibid.

Refusal to take disqualifies for holding any office, &c. 18

ALIENATIONS.

Though voluntary by crown debtor before crown lien

good ... • • • 29a

ALIENS.

"Who are ?— ^(See Natural-born tubjecto.) • 13

Owe allegiance, when — (See Allegiance.) . 19, 13

Naturalization of.-*(See Naturalization?) . . 14,15
Prerogative on their purchasing or holding lands 329, 30

Granting the lands to their relations, &c. . . • '335

Cannot take lands by descent— (Vide Etckeat ,) . 228,9

Inquisition when necessary to entitle King to his lands 949
Pardon of, under what words 100

Alien may come into the country without licence, bfct

semble Crown may order them out . 49

Cing^ay'pre^enthilgteteor 48,9

Allowing them to come here . ibid.

Eighth '<?!*#* to^e1k8<3te 43

Alien, King cannot hinder the'btnlaln^llWps^rw^r

in thiaeoanoyfof 50

416 INDEX.

ALIEN ACT.

Page

For what purpose passed . .... 49

ALMANACKS.

Crown baa dq prerogative copyright in 340

AMBASSADORS.

King sends and receives . .... 40

Appointment of them ♦ . ibid.

Licences or passports from to enemy . . . 48, 9

AMENDMENT.

King may amend at any time ... 334

AMERCIAMENT.

King cannot be amerced .... 374

AMOVEAS MANUS.

Judgment of for subject — (See Judgment.) ; 348, 9, &c«

ANNE'S, Queen, bounty 66

ANNUITY.

When King may grant , 389

APPEAL.

To King in Council from bis foreign territories— (See

Privy Council.) . . .- 38, 9

But foreign Court must first give some judgment • 39

King cannot direct re-hearing .... ibid.

To King as bead of church, and how granted . 55, &c.

INDEX. *i7

APPEAL. (Ecclesiastical)

Page

How determined 57

Does not lie from a local visitor, nor in cases of a tem-
poral nature . • 55

Where King concerned, party may appeal to spiritual
prelates, &c. within fifteen days after sentence — (See
Delegates.) .... .56,7

From places exempt, must he made immediately to

King in Chancery . . ... 57

APPEARING and claiming on extents — (See Extents Re*

sitting.) 358, &c.

APPROVEMENT.

What it is, and old doctrine of . . . 93, 4

APPROVER.

Who is an, and doctrine of approvement . . ibid.

ARCHBISHOP (See Church— Bishop— Temporalities.)

Appointment of, how, and by whom . 57, 8

Archbishopricks of King's foundation . 59

His power to grant dispensations ... .53

ARMS AND AMMUNITION.

King may prohibit exportation of .49

ARMY.

Prerogative as to . . . 45, 6

King cannot compel subject to enlist, or go out of the
country . ..... 46, 7

ARREST.

Of course King never subject to ... . 374
What King's servants protected, and when, &c. . 374, *>•

S K

41 a INDEX.

ARREST (continued).

P*gt

In royal presence, within verge of palaces, &c. not al-
lowed, but defendant not discharged . 376
King in person cannot arrest . . . 377
Privilege of Peers and Members of Parliament . 408, 9

ASSAULT.

By King, no redress 339, 40

ASSIGNMENT.

In trust for creditors, how it binds Crown . 285

ATTAINDER.

/

When inquisition necessary for King as to the forfeiture
— (See Forfeiture.) . 249

ATTORNEY-GENERAL.

V

Party in every cause for King . ... 244

Confession by, when binds Crown . . . 870

ATTRIBUTES.

Of King &

AUDITA QUERELA.

Does not lie against King .... 372

B.

to *

BAIL.

Not to be taken under extents « . . 281

BANK of England '. ' J : . . - . .127

INDEX. 41*

BANKRUPT. • r.

Page

Not to be released on extent . . * 284

May be arrested by Crown, though under examination ibid.

Goods bound by extent how far, &c. . 286
If assignment not inrolled before fiat for extent, Crown

may claim lands ..... 300

«

BANKRUPTCY.

Statutes of, do not bind Crown . . 366

BARGAIN AND SALE.

King cannot convey by . . 378

BARON AND FEME.

(See Husband and Wife.)

BARONY.

Origin of the title of — (See Peerage.) , 108

BARRISTERS.

Promotion of . . ] 18

BASTARDS.

(Vide Escheat.) ♦ -228

BATTERY.

By King, no redrtss 4140

BEACONS.

[See Light- houses.) . . .175,6

BENEFICES.

(See Church.) M

xx 3

*2Q INDEX.

t

BERWICK UPON TWEED.

Prerogative in .97

BISHOP (Sec Ovrck^Jrckbi+fr)

How and by whom appointed . 57, 8

Bishoprick of King's foundation . .59

No inquisition necessary to entitle, King to temporalities

vacated, aliter forfeited . . 949, 50

BODY OF CROWN DEBTOR.

Prerogative as to ... 99% fc*

BONA VACANTIA.

Prerogative as to . . 135, 6

BONDS.

To King, in what form, and their force, &c. 965, 6

BOOKS.

If no known author, not in King— (See Copyright.) 941

BOROUGH COURTS 190

1 •

BOROUGH JUSTICES.

Exclusive Jurisdiction • . .

BOROUGH, ENGLISH.

~ Cttrtom of, binds Crown ... 38Q

INDEX. «l

BOUNDARIES.

Page

Of the prerogative ♦ . 7,8

c.

CANONS.

(Sec Convocations.) % 9 . . $1, i

How and by whom made . ibid.

When good . ....... . 53

Do not bind laity ..... ibid.

CATTLE.

Strangers when liable for Crown debt . . . 287, 8

CHAMBERLAIN. (Great)

Office of, how inheritable . , .81

CHANCELLOR, LORD.

How and by whom appointed . ,. :« •_**.« ci 78

Vice-Chancellof ..... ibid.

Holds office during King's pleasure -.. ... 82

CHAPEL. (Free)

King may erect, &c. with exemption 6.)

King and subject join In forraddtion, wh6 founder . 53
By whom visitable . '. '.ibid.

CHARITIES.

Prerogative as to, as parens patri* ,..,,. 161

In chancellor from Crown, how far ... ibid.

Crown appropriating general #A to a parUcuiir cha-
rity ....;. 461, *

+22 INDEX.

CHARITABLE FOUNDATIONS,

Pagir
Or Corporations ..... 129

CHASE. (Free)

Prerogative a* to . . . M 140

CHESTER.

Earl of, Prince of Wales is, and nature of title 403, 4

CHILDREN. (King's)

(See Prince of Wales.) . . . • . ibid.

Eldest daughter, how protected . . . 403

The other children no peculiar rights, &c. . . ibid.

Precedence and rank of the royal children . . 405

Whether alienage may exist, and how it can affect . 405, 6

Prerogative as to their marriages and education . 406, 7, 8

C HOSES IN ACTION.

Due to enemy, King's right to .... 43

Forfeiture of .... 223

King may grant and take when . 387, 8

Matter of record not necessary to vest 390, 1

Rights of grantee .... ibid. 399

CHURCH.

Of the King as head of, or supremacy of Crown : Usur-
pations of popes ... . 50, 51

Ecclesiastical laws, by whom and bow made, &c. 51, &c*

King head of ecclesiastics, and their laws; reforms abuses,
&c. in . . . 1, 53

Form of prayer for royal family, and on public occasions,
given by King . . 54

Prerogative as dernier resort in ecclesiastical causes 55, &c.

King patron paramount of benefices ... 59

As such fills vacant dignities and benefices, when and

how ...... ibid. 64

INDEX. 42*

CHURCH (continued).

Page

Presents to benefices on temporalities of archbishop* &c*
being in his hands . . 59, 64

Church not full till induction, against Crown . $9

King presents to benefices vacant by promotion, though

other patron. — Prerogative herein ... 60

The patron loses his benefices by promotion, King may
enable him to retain, and herein of a commendam re-
tincre, and a commendam capert and nature thereof 60, 1

How prerogative presentation affects an advowson in
common, there being several patrons . 61, 3

Where King has a private interest and a prerogative

right ...... 62

The maxim nullum tempus, as to prerogative presenta-
tions ...... ibid.

Neglect of King to present as patron within six months ibid.

When King's presentation lost through usurpation . ibid.

King may revoke his presentation when ... 63

Deans how elected . . . . .ibid.

King erecting free chapel — (See Chapel, free.) . ibid.

Temporalities of archbishop, &c. King seized of and pre-
rogative therein — (See Temporalities.) . . 64

King as supreme head of, hath right to publication of

liturgies, bibles, &c. . . . . 940

Subject building ..... 63

CINQUE PORTS . .«...'. 119,90

COIN.

(See Money,) 196 to 199

COLONIES.

Obtained by conquest or treaty, or peopling them when

found uninhabited 99

Prerogative ovet conquered or ceded territory . . ibid.

This prerogative subordinate to Parliament . . ibid.

King cannot break charter granted to people conquered,

&c" • ibid. &c.

c ••

> »

f.

4&k INDEX.

COLONIES (continued).

Promise of charter, bow it affects prerogative . 32, &c.

Till laws thereof changed, what prevail * 30

Uninhabited country, when peopled by Englishmen,

what laws and prerogative prevail . ibid.

Colonies, three sorts :-—

1. Provincial atablisbuient*;

2. Proprietary governments ;

3. Charter governments ;
Nature of each . . . . SO, 31

Form of government in, in general 31, 2
Law* is, void, if contrary to English statute* respect-
ing them ibid.

Taxing them King alone cannot; only parliament or

act of assembly . .31,2,4

Prima f*cic, Engttsh eoromon law does not prevail in,

but by charter does in almost aft of tbetn 32

When English statutes bmd them . 32, 3

Colonial charter cannot be violated by King ibid.

Prerogative is governed by charter to colonies, otherwise

criterion is English common law ibid. &c.

. King's . various rights in cok>nte& on this ground \ as to
colonial courts of justice ; empowering town to send
representatives ; entering noL pro* presenting to be-
nefices in ; right to mines ; escheats, &c. Sec. . 3S
Courts of justice in, emanate from King • • ibid.
Cannot make laws unless power from Crown ibid.
Restrictions on the right and exceeding the limits al-
lowed . .... ibid.
King when may alter the constitution of them . ibid. &c.
Different modes of granting them a constitution 34
Colonial governments in general have L governor; & co-
lonial council ; 3. representative assembly ; nature and
powers of eacb ..... ibid.
Governor,

Has in general kingly authority, but mere servant
, of hi* sovereign* list of his respective powers . 34, 5, 6
-..■•* What prerogatives King may depute to governor. ibid.

Right to assent to act of assembly, grantable by King 74

index. ***

COLONIES {continued).

Pkgr

Governor,

His acts, under what seal ; and how tMsmumman de~

termraed, and its effect on other ofikm 35

Colonial assemblies, .

How different from Parliament « 36, 7

Their powers and force of their acta * .31, 9, 6, 7

Differences between them and Parliament, at to Ring's

assent to their acts - . 37

* Effect of demise of Crown on . ibid.

Sovereignty of King sot weakened by termination of •

charter — prerogative thereon — King may acoept

surrender of 37, 8

Taking away the charter on absolute necessity, &c. ." ibid.

Re-conquering territory, former charter rights revive ibid.

Proprietors may vary boundaries between themselves

cannot dismember to bind Crown . . . ibid.

Question as to boundaries, &c. for King in Council . 38, 9

But Chancery has jurisdiction, when - ibid.

COMMERCE.— (See Patents-rMarts and Fair*— Cain.)

Protection of an object of law .... 168

So of domestic trade .... 176, 7

Lex Mercatoria .... 162

Foreign commerce, how regulated 169, 3

Statutes as to, bind Crown 163

King how far arbiter of, cannot in general restrain free-
dom of importation or exportation, &c. ' 163 to 170
Treaties as to . . . 166, 7; 170
King appoints consuls ...... 170

Gives liberty to enemy to import, when and how ? 170, 1

Licence to subject to trade with enemy, prerogative as

to . 171,3

The like by order in council . . . 179

King makes new declarations of contraband • ibid.

King's dominion over the seas — (dee Seas.)
Prerogative as to Ports, Beacons and Light-houses — (See
those titles.) 174 to 176

426 INDEX.

COMMISSION.

Page

New, judicial, and other Commissions, not warranted

by precedent, bad . . .77

Special, on extraordinary emergencies . . ibid.

To take recognizances, grantable by Crown . . ibid.

To inquire of and find simple contract debts of Crown,

&c. — (See Extents.) ..... 266, &c.

Of Review,

King may grant after sentence of delegates . 56

COMMON. (Tenants in)— (See Joint-tenant*.) •

King and subject may be . . . 210, Tl — 242

Cattle of one whether liable for Crown debt due from

the other . . . . 288

COMMON, (Right of)

Not liable to escheat . . .233

How protected against extent — (See Inquisition.)

COMMONS.

Degrees of common people, prerogative as to 116, 7, 8

COMPOUNDING,

Qui tarn action, King how protected . 335

CONFESSION.

By Attorney-General, when binds Crown . 370

CONQUEST.

Prerogative over conquered country, and how it may

be affected ..... 29, &c.

Charter, &c. to conquered country, effect of .33

INDEX. 437.

CONSTABLE. (High)

Page

Office of, bow inheritable • . . .81

CONSTABLE.

King may exempt a person from serving SO

CONSULS.

Appointment of . • • . • 40

CONTEMPT.

Seizure of lands for not returning to this kingdom on
being recalled ..... 34

Inquisition necessary to entitle King to freehold for-
feited for . . . .350

CONTINGENCY.

King may grant , . i 388

CONTRABAND OF WAR.

What is and prerogative as to . . » 173, 3

CONVEYANCE.

By King, how it may be . . . .878,9

CONVOCATIONS, ECCLESIASTICAL.

What they are, how and by whom assembled . 51, 3

Their jurisdiction ; and canons, when good and how far

binding . . • • *>3# 3

Subject entirely to Crown . . . .53

COPYHOLD.

Escheats to lord of manor .... 333, 3

Copyhold lands not taken under extent 397

King cannot be a copyholder * 378

< 1

42$ INDEX.

CQPYHOLD (continued).

Page
Suspension of whilst King holds . . 378

Surrender of to King as lord, according to custom, good 391

COPYRIGHT (Prerogative.)

On introduction of printing, general and exclusive

right assumed by Crown, but finally limited, &c. 238, 9
But King necessarily has a certain prerogative copyright 339
As executive magistrate, a copyright in public ordi-
nances, acts of parliament, proclamations, orders in
council, &c. ..... ibid.

As head of church, publishes liturgies, forms of prayer,

bibles, &c. .... 240

How far if notes, &c. . . . . • ibid.

Whether a right by purchase to copies of certain law

books, &c. , ibid.

Not in almanacks . . . . . * . ibid.

King cannot restrain press, no general right 240, 1

If no certain author, books common 241

Nature of prerogative copyright continues after publi-
cation ...... nMd.

CORNWALL.

Duke of, titk in King's eldest son* and nature of it, &c. 404

CQRODY.

What it is, and King's right thereto . 65

CORONERS.

How *nd by wbotti appointed * 79

CORONER'S INQUEST.

An inquisition to entitle King . 259

CORPORATIONS.

^ s

Object and use *f . 190, 1

definition of . . •- • . 121

INDEX. 499

CORPORATIONS (continued).

Aggregate and sole ..... 121,3
Ecclesiastical and lay ... 133

Lay1 Corporations, civil or deemoaynary ibid.

Various public corporations for sciences, fltc. •. : ibid-

King alone can constitute .132,3

Commoti-law corporations without prerogative 133

Corporations by prescription . • ibid.

King's express assent by charter ibid.

Charter, what words sufficient, and what will Consti-
tute a corporation ..... 133,4
Usual functions and peculiar properties of corporations,

need not be expressly granted .134

Crown cannot compel a body to accept, or a subject to

become a member . . ibid.

When a prescriptive corporation, though charter con-
tain words of creation .... ibid
Majority of town to be incorporated must accept char-
ter . . . • . . ' . ' . ibid.
Charter may be accepted by majority of part, though

there be not a majority of whole, when ibid.

What sufficient acceptance of charter . 135

Whether corporation may accept part only of a charter , ibid.
Old corporation may refuse new charter tit toto ibid.

Charter should give njune of corporation, but name by

implication ..... 136

King may mould them ; when may altar rules *nd when

not • • » « . ibid.

King cannot furnish them with powers, lee. inconsistent

with law . . . -■*'■' :. 137

King may grant the prerogative of creating t» a subject,

law and doctrine thereon 137, 8, 9

Statute corporations . . .- ' .-■ 129

Usually created by King ... 137

Corporations cannot make a sub-corporation • « 139

King when and how visitor of . . - . . . , . 130, 1
King cannot destroy corporation • • 1W, 135, 133

King may take back charter by surrender inroHed 133

430 INDEX.

CORPORATIONS [continued).

Page

When dissolved by destruction of part, and prerogative

as to revival, &c. . . . . . . .132

When by misuser or abuser, but not by omission to

choose officers ...... • 138,3

King's licence as to lands in mortmain . . .131

Attainder of head of, how corporation affected as to for-
feiture 218

Private goods of members not liable for fine on corpo-
ration . . 287

CORRUPTION, (Of blood.)

When it applies 230, &c.

Consequence of. — (See Escheat.) . 231, 2, &».

Effect of pardon as to . . 103

COSTS.

General rule King neither pays nor takes . .310

Exceptions — (Set Extents.) . . . 310, 11

Not on scire facias to repeal Crown grants, &c. 331

On quo warranto . . « 338

COUNCIL.

Appeal to King in — (See Appeal.) . 28, 9

COUNCILS OF KING.

1. Parliament. 2. Peers. 3. The Judges. 4, Privy

Council ..... 408, &c.

Peers a right to counsel King . . 408, 9

Peers therefore protected from arrest . 409

Judges advise King on questions of law . • ibid.

Privy Council — (See Privy Council.) ibid. &c.

COUNTIES

Corporate 120

Palatine • . 119,20

431

ibid.

77

INDEX.
COURTS (Public Judici..,.-.^^,,

King alone can constitute *"*e

Kng<^notch hdr * •_• • 75

jurisdiction proceeding or their

Cannot be granted in a new way ' ' ' ' 76

<^««*--llcdJrtjii«ii,i_1- ', "*■•
wee wr«d J person, and

^'"-CSee Judgu .Officers.) ' ' 76

Chancellor • • 78

Of Wards and Liveries " * ib'd-

Kng may sue in what ^ ^ " • -968

theirordinary jurisdiction * ' U,°a81' °U' *

£■*■"«■« fro", part of revenue " **

Of what these consist . 9»

Grants of them restrained ' ibid-

COVENANT (to stand sei^d).
King cannot convey by

CROWN-<See **-******. «c. *.)

236,7

378

Demise (not death) of Kino-

Descent of-(See Descent.)" ' U

CROWN LANDS.
(See £««/,.<)
CUSTOM.

^08, &c.

torn. &c "^ Ea*Ub' «««"** c«-

380

4S* INDEX.

C USTOM— (continued).

Of London as to pledgees' peculiar right to hold good*,
does not bind Crown 285

CUSTOMS— (See Revenue.)

King's goods not liable to pay . 377

D.

DAMAGES.

For King for injuries to his lands 334

Against King, petition the remedy 341, 344, 5

DEANS,

How elected ... 63

DEBT TO, AND FROM, CROWN.

When of record per $e * 965, &c.

Bonds to King, in what forms, &c. . • "tod-

Simple contract debts 96&&C.

Remedies to recover — (See Remedies for King.-Extents.)
Due to Crown debtor. Crown may take, &c. — (See Ex-
tents in second degree.) • 303, &c.
Information of debt for King .... 335
Doe from King, petition de droit the remedy 341, 4, 5
King's personalty, when liable for his debts M4» 3

DECEIT.

On obtaining Crown Grants — (See Grants.) 396, ftc.

DECLARATION— (See Pleading.)

When King may waive his, and declare de now 334

a

INDEX. 499

DELEGATES (Ecclesiastical.)

. . , • Page

Appeal to . in ecclesiastical «aulei.*-OrigMi <rf thek
, power . . «... 55

Who may be, and their power . • 55, 6, 7

King may grant commission of review after tbeir sen-
tence ..... 56
* Suit before them does not abate by death of either of the

parties „ ...... ibid.

If they exceed their authority may be prohibited by
courts of law ..... ibid.

No appeal from them to house of lords . ibid

DEMESNE LANDS.

(See Lamb) ..... 202, &c.

DEMISE OF CROWN. . .11

DEMURRER.

(See Pleadings.) . 368, 9, &c.

DENIZATION, and DENIZEN.

(See Naturalization.) . . ... 14
Prerogative of Ring alone . • ; . ibid.
Effect of, and how granted . -. . ibid.
Prerogative of, cannot be delegated . ... • > . ibid.
Denization not presumptively obtained by King graft-
ing lands but grant void » «... 393
As to denizens purchasing lands , . * * ? . 389

DEODANDS. , .

What are and former object of, and prerogative herein 153
Rule omnia qua movent ad mortetn sunt deodanda, and

.decisions on • , 153, 4

Death within what time .necessary to give title to ' 154

454 INDEX.

DEODANDS {continued).

Alienation, &c. not to aflect Crown . . , ibid.

Finding of death by the article necessary k ibid.

By whom found and of the inquisition . . 154, 5

This prerogative discountenanced, and how . .155

DERNIER RESORT.— (See Church— Appeal.)

Of King as, in ecclesiastical causes 55

DESCENT OF CROWN.

Rules in general, same as in private property . .9

Exceptions . . . .10

DIEM CLAUSIT EXTREMUM.

(See Extent.) .... . S28, &c.

DISPENSATIONS.

From the laws, antient exercise of the power 95

Of statutes, taken away , ibid.

Of common law, in general void, a distinction . 95, 6

King may grant from ecclesiastical laws . . 53,4
As to commercial dispensations — (See Church,)

DISTRESS.

(See Replevin.— Rents.) . . . . 208, 9

Prerogative as to, for Crown rents • . 208, &c.

King may at common law without attornment . 208
For all rents, and on all lands of tenant, though holden

of another lord when .... 208, 9
In highway .... 209

Grantee of Crown lands, his rights as to . . ibid.

On goods seized on extent bad . 281

For rent, how far extent operates against . 287

INDEX. *3&

DISTRESS (continued).

On Crown lands bad . 376

Damage feasant, not on Crown cattle . . . ibid.

DOWER.

Not to be taken under extent when 287, 306

And widow protected .... $09

DROIT OF CROWN.

Ship taken as reprisals without King's authority . 41

DUKE.

Origin of the title— (See Peerage.) ... 106

DUTIES.

Of King and subject . . . . . 7

E.

EARLS.

Origin of the tide— (See Peerage.) . . 106

EAST INDIA COMPANY. . . 19T

ECCLESIASTICAL LAW.— (See Church.)

Of what compounded . .... 51

By whom and how made, and to whom subject . 51, 2f 3

King dispenses with ..... ibid.

.ECCLESIASTICAL COURT.

The Chancellor may issue ne exeat regno against defend-
ant in that Court for alimony . Jj

F f 2

; INDEX.

CLESIASTICS.

Subject to what authority . . ... 53

UCATION.

Of the royal children, &c. — Prerogative as to . 406, 7

2CTMENT.

Action of, at the suit of the King . . . 245

.BARGO.

The King may lay on general embargo on sudden emer-
gencies and necessity . * . 21, 50, 164, 5

iZMY.— (See Aliens.)

Trading with — Prerogative as to dispensing with com-
mercial disabilities as to . . . 170 to 173

\TRY.

For King into land when necessary . . . 251,2

IIROR.

Lies on judgment on extent against Crown, and how, &c. 375
Effect of writ of .... ibid.

Restitution after . . . . . . ibid.

.SCHEATS.

Arise out of feudal system, and nature of , 226

Difference between escheat and forfeiture . . ibid.

Lands escheat to lord of the seignory, or person of

whom held ... . . 227

PrimA facie King is lord when .... ibid.

Copyhold escheats to lord of manor . . 227, 232, 3

Is either for default of heir, or crime of tenant . 227

Default of heir in general ..... 227, 8

So if a monster or bastard only . . . ibid.

INDEX. 4S

ESCHEATS (continued).

Pag

So if an alien child only . .... 228, .

Prerogative as to lands bolden by aliens . . ibid

Escheat on corruption of blood for a crime . . 23( '

Now only holds on attainder of treason, petit treason

and murder, and heir, &c. in other cases may enter 23(
In treason forfeiture applies, and lands go to King,

though another lord ...... 230, 1

On attainder though lands escheat to another lord, King

entitled to his year, day and waste . . . ibid.

Corruption of blood by attainder— operation on after ac-
quired property . . .... 231

And affects the posterity of offender, through whom

they cannot claim . . . . 231, r

Aliter collateral issue . .... ibid

Or where not necessary to trace through offender . ibic
May inherit through one parent, though other attainted 23V
What lands and tenements subject to escheat . . 232, 3
Even King claims by escheat on same rules as subject ibid.
If a tenant to perform services no escheat, as if cestui que

trust or mortgagor be attainted, &c. . . . ibid.

But Chancery will not decree foreclosure against Crown 234
Escheat of trust lands or mortgaged lands, on death of

trustee or mortgagee — Equitable claims how they

affect Crown ..... 234

Pardon will not prevent vested escheat to lord . ibid.

Effect of pardon on subsequent property, corruption of

blood only removed by Parliament . . . ibid.

In general, no inquisition or office necessary . 234, 249

Crown should immediately enter . . . 234

Liberal practice of Crown to grant to relatives, &c.

lands escheated ..... 235, 6

Grant of lands when they shall escheat bad . . 389

ESQUIRES.

How created . . . . ; 118

ESTATES. (SeeLowA, Crown.)

Tail in King— (See Tail, Estates.) .... 206

Page

438 INDEX.

ESTOPPELS.

Not against, though for, King . . . ' . 381

ESTRAYS.

What arc 151

Prima facie in King, but generally in lords of manors, kc, ibid.
What necessary to vest property in King . . ibid.

When and how title to may be defeated • » . ibid.
King's goods cannot be estrays . ... .152

How to be used by King .... ibid.

Payment by owner on reclaiming .... ibid.

EXCHEQUER (Court of).

King's revenue court . . . ; 244
Where Crown interests involved, suits even inter alios,

removeable into Exchequer ... . ibid.

King may maintain any species of suit therein • ibid.

General seal day, &c. therein . . 359

EXCISE.

Lien on goods for duties . : 9193

EXECUTION.

In criminal cases, as to King pardoning part of it . 96
On extents, &c. — (See Judgment.) . . 37S

How if monies recovered on petition de droit . . 348, 9
As to lands, only judgment for subject, and this suffi-
cient— (See Judgment.)

EXECUTIVE MAGISTRATE.

King's power as in general— must consider the laws 3

His power kept separate from legislative authority, and

why . • . • . . ibid.

Must have a share in legislation • . . 2, 3

General nature and extent of King's rights as . . 3, 6, 7
Executive power why in single hand • . 3

INDEX. 439

EXECUTIVE MAGISTRATE (continued).

Page

As such, Crown has right of promulgating to the people
all act* of state and government, and has copyright
in Acts of Parliament 239

EXECUTORS.

Must first pay. Crown debt — when may pay debt in
equal degree, &c— cannot retain against Crown—
(See Extent.) . . ... 399, 30

Goods of testator not taken under extent « • 287

Nor executor's goods for deceased's debts, unless assets ibid.

King may be, but prerogative thereon • . 379

EXEMPTIONS.

From serving in public offices, King may in general

grant 90,118

King cannot exempt where it would affect public jus-
tice, &c. . . . , ibid.
Grants of, how construed . . .21
From impress . . • . . 48
From liability to be arrested — (See Protection — Servants.) 118
From laws — (See Dispensations.) . 95, 6
Discharge from future liabilities, when good . • S88, 9

EXPORTATION.— -(See Commerce.) >

King cannot in general restrain . . 163 to 170

Licence, &c. to trade with enemy . 170 to 173

■

EXTENTS.

Extents in general. — A high prerogative remedy 903

Statutable origin 933

Exteuu have the energy of statutes merchant, &c. 963, 4

Different kinds and descriptions of, and against whom . 964
Not in foreign dominions of King unless laws there al-
low it . , . .34
In the 2d, 3d, &c degree ... 964

440 INDEX.

EXTENTS IN CHIEF.

Page

1. Commission to Jind debts and inquisition thereon,

and of debts due to Crown . . . 265

No execution till debt of record . . . ibid.

What are debts of record for King . . . ibid.

Obligations and specialties to King, when and in what

form, &c. . . . . 265,6

Debts due from tax collectors . . 266

Not simple contract debts . . . ibid. &c-

Against simple contract debtors to the Crown . ibid.

Debt must first be recorded by commission . . 266, 7
Nature and form of commission to find debts . 267

Baron's authority for it necessary .... ibid*

As to notice to defendant of executing the commission ibid.
What evidence of the debt before the commissioners 267, 8
Witnesses disobeying, &c. . * . . . 268

Inquisition must be openly taken, right of strangers to

contest before commissioners, &c. . . . ibid.

Mode of finding debts, inquisition must be precise and

decisive, what sufficient certainty and rules hereon 269

How to object if otherwise . . . . ibid.

What debts to Crown may he found by inquisition, ge-
neral rule any suable debt ... . ibid1.

Monies on account . . .... ibid*

Monies received as King's money — When a man to be
deemed a receiver of Crown monies, no constructive
receipt, &c. Bill for the money not dtae . . 27<*

Bonds, bills of exchange and promissory notes, but must

in general be due . 270, I

Balance between partners . . 271

Melius inquirendum if finding dissatisfactory— -(See Me-
lius inquirendum.) . ... ibid.

2. Scire facias to justify the extent*

In general necessary on record or inquisition to bring

defendant into court, and why . . • ibid.

Not if insolvency ... 271, 2

On immediate extent — (See Sect, 4, post.) . 277, &c.

Not necessary to revive suits of King . . 27 U 2

INDEX.

441

EXTENTS IN CHIEF {continued).

P*ge
Od bonds for performance of covenants , . • 272

Nature and form, and requisites, &c. of the scire facia* ibid.

When sued out and tested . . ibid:

Warning defendant, and rule to appear, fee. post. 272, 3

Sheriff return • , ibid.

"Effect of non-appearance, judgment thereon • 273

5. The form, teste, issuing and return of
Form of9
Recites, inquisition or record debt, sheriff to enter and

UIKC • • « .

Sheriff to summon witnesses
Proviso not to sell . .

Conclusion of . .

Extent on bond does not state breach

Teste of,
May be in vacation but not before fiat
By whom tested, signed, sealed

Issuing of,
Out of equity side of exchequer .

In vacation ......

Several, when and how

After defendant's death ....

Another, first set aside .

On old inquisition and fiat .

Return of
In term ; a general return
No term to intervene . .

Death of one of defendants .
Filing return . . .

xrsiise . • . . . %

Immediate extent, token it may issue; Affidavit to
obtain it, and fiat thereon
Immediate extent, i. e. without scire facias, founded

on statute of. Hen. 8. .

Issues at discretion of court, how .

ibid.

276
ibid,
ibid.

274

ibid,
ibid.

274
275

ibid.

ibid.

ibid.
276

274,5
275
276

ibid.

ibid.

277

ibid.
278

442 INDEX-

EXTENTS IN CHIEF (continued).

Page

Id vacation before return day though after return of
commission • 277, 8

Affidavit of danger .... 278

Must swear positively to debt when sufficient . . ibid.
Must state danger of debt being lost, and bad circum-
stances of defendant, and reason why, &c. . 378, 9
Application to set aside affidavit, &c. . • . 279
Before whom sworn ... ibid.

Fiat of baron, fyc.
How obtained, &c 279,80

5. Execution of, in general . ... 280

Clause of nan omittas .... ibid.
Sheriff's power under it, may break outer door ; not

to execute it on Sunday . ... ibid.
What he may take, all property debts and person at

once ...... ibid.

Notwithstanding death . . . ibid.
Taking all goods, though more than sufficient . 280, I

May take lands though goods sufficient . . 281

Defendant not bailable ..... ibid.

Sheriff must not sell .... ibid.

Seizure of lands and debts nominal . . 281

Keeping specialties ibid.

How writs take place inter «c, concurring with extent

in aid . . • 281, 3

What may be taken.
Body.

By common law and statute may be taken, but not
usual . 282

King may protect bis debtor by writ of protection,
but subject may still sue to execution and have
it if he undertake for KingYdebt : obsolete, but
exists still ; instances . . ... 282, 3

'Writ of protection to subject for one year he serv-
ing King, &c. . . . . 284

INDEX. 44S

EXTENTS IN CHIEF (continued).

Subject may hold body with King, but latter chooses

custody, &c. ..... . 284

Defendant though bankrupt or insolvent liable not-
withstanding to King . . . ibid.

Goods and sums of money . . . 284

What defendant had at the teste or fiat is bound 284, 5

King not bound by statute of frauds . . ibid.
All goods though in trustees' liands but must leave

necessaries, &c. ... 385
King not bound by sale in market or custom of

London as to pledge • « . ibid.

When stranger claims a property in the goods . 285

As assignee in trust for creditors . ibid.

As pawnee, bailee, demisee, &c. . . 285, 6

As assignee of Bankrupt . . . 286

Joint term of husband since deceased and wife 286, 7

Bower not taken under extent . . . 287

Partnership goods only defendant's share . ibid.

Against several separate goods . . ibid.

Where stranger claims interest without property . 287

As goods distrained . ibid.

Landlord, year's rent . • . ibid.

As executor . ... ibid.

As member of corporation . . • ibid.

# Cattle of stranger or tenant in common in King's

debtor's lands . . . 287, 8
Generally prevails against subjects fieri facias,
though prior seizure (but not sale) under the

fieri facias . 288
If subject's judgment prior to commencement of
Crown process, and subject's seizure before ex-
tent, which is to be preferred . . 289 to 292

Special finding better if doubt . . 292, S
Court will protect officers if fair doubts whether

goods liable and how . . 293

Lien on excise goods • • . . . ibid.
Taxes to be paid before execution of subject satisfied ibid.

444 INDEX.

EXTENTS IN CHIEF (continued).

Page

Lands.

May be seized though goods sufficient . 293

Time from which lands (generally) bound • . ibid*

By bond made like record within statute

Henry 8. . . . 293, 4

By other bonds and specialties . . 294

By simple contract debts . . . ibid.

By statute debts from certain Crown officers,

receivers, collectors, &c. . . . ibid.
From time of entering into their office . 294, 5
Other officers and private persons, lands not
within that statute from whence bound 295, 6
Time when simple contract is a debt of record 296

May seize equitable titles as an equity of redemp-
tion— (See Mortgage.) . . . ibid.
May take an estate in trust for defendant . 296, 7
Rents service, &c. . . . 297
Tithes of lay impropriators . . . ibid.
Not tilhes of beneficed clerk — (See levari

facias.) ibid*

Copyhold lands .... ibid.
Term for years . . . ibid.

When stranger claims interest and property in them 298
Alienation by defendant if made after time whence

lands bound, bad .... ibid.

A liter if made before .... . ibid.

Term to attend inheritance . ., ibid.

Fee simple lands followed after the death of the

Crown debtor . . . . ibid.

And estates tail by statute which only relates to

certain Crown debts 298, 9

Effect of alienation by issue in tail before Crown

process on ancestor's debt . 299

Charging heir if executors have assets and feoffee

if heir have * 300

When cannot follow estates tail after death 299

Alienee of fee simple lands . » 299, 300

INDEX. 445

EXTENTS IN CHIEF [continued).

Page

Surviving joint-tenant not liable for deceased's
Crown debt ..... 300

Wife's jointure and dower .... ibid.

If assignment of bankrupt lands be net enrolled
before fiat — (See Bankrupt.) . . . ibid.

Extent operates notwithstanding a subject's judg-
ment, if not a sale under the judgment before
extent, when, &c. . 300 to 303

. Mere agreement by defendant for sale of land, or

equitable mortgage, does not bind Crown . 303

6. Of seizing debts and credits, and herein of
Extents in Chief in Second Degree.
Jury to find debts, &c. due to defendant— seizure no-
minal, but entitles King to process against debtor to
his debtor . . . ... ibid.

Semble King may for his own benefit proceed against

debtors to his debtor, &c. in infinitum . . ibid.

Whether debts to Crown debtor, &c. are bound from
fiat ..... ibid, to 305

Payment of debt to Crown debtor after fiat, but before

caption under inquisition . . . . 304

Whether inquisition must state that the money is due to

Crown debtor . . . • • ibid.

What may be taken under it . 305

Simple contract and other debts for which
Crown might have extent against its im-
mediate debtor .... ibid.

No process for Crown against debtor to Crown debtor

till debt due or if outstanding bill . . . ibid.

If debt defendant could not alien . , . ibid.

When debts seized are due to Crown debtor and another,
whether Crown takes all ibid. 306

. Sheriff cannot compel, payment seizure nominal only ibid.
Mode of proceeding for debts due to Crown debtors by
scire facias or immediate extent as against immediate
Crown debtor .... 306, 7

If small debts seized, they may be collected and paid, &c. 306

8

446\ INDEX.

EXTENTS IN CHIEF in Second Degree {continued).

P«S~«

Immediate extent against person to whom receiver-ge-
neral has paid over .... 306

Process against debtor to Crown debtor before extent
finding them is returnable . . . 306, 7

7. Venditioni exponas. — Order Jot sale of lands.

Sale of goods under venditioni exponas . . 307

No motion for venditioni exponas, but defendant entitled

to notice of sale ; ibid.

If sheriff cannot sell at appraised price . . ibid.

Sheriff may move for allowance extra poundage • 307

Lands sold by motion of attorney-general under statute,

how, &c. . ... . ibid. 8

Discretion of court as to sale of lands ; not allowed, if

goods sufficient . . . . • 309

Lands sold only to amount of debt . • ibid.

Costs and expenses of Crown on sale of lands — (See

Costs.) ..... 308,9,11

Court protects mortgagee and claim of dower, &c. and

how .... . • S09

• £« Costs.

General rule, Crown neither pays nor takes . 310

Exceptions, specialties made records by 33 Hen. 8. . ibid.
When lands' sold by virtue of 25 Geo. 3. . .311

Defendant applying to pay debt not to pay costs if his

goods sufficient on sale of which Crown has no costs ibid.

Collectors of taxes liable to costs on extents . . ibid.

Bill may be taxed, motion to refund ibid.

• «k

9. Poundage*

By common law ..... 312

By statute . ibid, to 314

Payable out of sum levied and defendant not liable, other-
wise if a penalty, or Crown entitled to its costs, &c. 314, 15
When the debt is paid after the venditioni exponas 315

Apportionment of poundage to different sheriffs ibid.

index.- **r

EXTENTS IN CHIEF in Second Degree (continued).

Page

Where extents into two counties and debt paid to one

sheriff . . . * . 316

Sheriff may retain poundage, but must return whole

money • ... . ibid.

As to sheriff getting reward for extraordinary service Ibid.

»

EXTENTS IN AID.

U In general* — Course of proceeding.

Nature and origin of— Is the prerogative process used
in King's name for his debtor's benefit against deb*
tor of latter ..... S17

Mode and preliminary forms on issuing extent against

debtors of Crown debtor . . 317, 18

To whom proceeds to be paid . . . ibid.

2. To what degrees debts may be seized on.

To the fourth degree and what so considered 318

3. What Craom debtor may issue it . . 318 to 320

Common law hardships redressed by late statute ibid.

Taken away in general from Crown debtor and restrained
to collectors of revenue bound by bond, &c. . 319/20

4. For sum may issue, affidavit, and fiat . - 320

To issue only for amount due from Crown debtor issuing

it to Crown . . . 320,21

Sum to be stated in fiat, indorsed on writ . • ibid.

Affidavit for it . . - 321

Difference between and for extent in chief .. ibid.

1. That debt due to Crown from its debtor 322

2 and 3. Debt to Crown debtor and likely to be *

lost . . . . . ibid.

4 and 5. That debt to Crown debtor was originally

debt due to him and has not been otherwise put

in suit .... 323, 4

6. That prosecutor less able to pay King 324

How to obtain fiat for extent in. aid . . v 324, 5

Proceedings, commission, &c. « ibid.

448 INDEX.

EXTENTS IN AID (continued).

5. Form of. — What taken.*— Motions.—* Pleadings.^-

Costs.— -Poundage, fyc. ... . 325

Form of ... . . 825,273,4

What may be taken . . . . 325

Body, goods, lands, simple contract or specialty debts

and monies ..... 326

Personalty from whence bound . • . ibid.

Land from whence bound . ' . . ibid.

Discharge of body .... ibid.

When more levied tban was due . S27

Motions to set it aside, $c. . 326

No equitable relief on ground that Crown debtor
has assets without resorting to the writ, &c. ibid. 28

Pleadings . 327

(See post, title Extents resisting.)
Any defence which would hold as against defend-
ant's creditor, i. e. Crown debtor, instances . ibid.
Bill not due — set off— statute of limitations— bank-
ruptcy, &c. . 327, 8

Costs 310, 328

Poundage ibid.

EXTENT AFTER DEATH OF CitOWN DEBTOR.

Diem clausit extremum 328

Sheriff's duty under • . . . > . ibid.

Substantially similar to other extents * . . ibid.
Form of • . . . v . ibid.

On what founded . • . , 328, 9

It may issue immediately on death though no exe-
cutor, &c. . . . . . 329

Must have died indebted, and debt must be of record ibid.
Duty of executor in administering assets as to Crown

debt, must pay Crown first, cannot retain against, ibid.
Payment of equal debt to a subject before notice of
Crown debt, funeral expenses, &c. • . 329, 30

INDEX. 449

EXTENTS [continued).

Resisting.

Page

(. e. traversing inquisition or office. A statutable remedy
for subject— (See Tracer* of Office.) . 358

1st No locus standi in court against Crown without sub-
ject claiming property ... ibid.
On return of inquisition, rule for subject to appear and

claim— 4brm of when given, &c. 359

Appearing and claiming, when and how • 359, 60

Claiming a lease of the \&n<k pendente lite • ibid.

Who may appear and claim — defendant and stranger,

having interests, &c. .... 360, 1

Different parties, &c. claiming; prerogative of making
them interplead ..... 361

Sdry. Motions to set aside extents, &c. When and how

made, and notice thereof .... 362

May move to set aside for irregularity, &c. proceedings

not on face of record .... ibid.

When motions should be made, waiving irregularity . 363, 4
Must apply on irregularities not on face of proceedings 363
Setting aside partially. New writ 364

Moving to lay out money levied in funds, &c. pendente lite ibid.
Moving to pay the money into court, when and on what
terms ...... 364, 5

Defendant cannot dispute debt on affidavits ibid.

Motion to refund on excessive levy . . 365

3d1y. Pleadings on extents; four day rule to plead;

further time ... ibid.

Pleas': 1. by defendant or his representative ; or, 9. by

strangers — (See Pleadings.) .... 365, &c.

No ruling to reply, but court will enforce replication,

CCC. .... 9O0, «r

(As to replication, rejoinder, &c. see Pleadings.)
4thly. Venire to try ; Where King likes; issues on extents

at Westminster ..... 370

Notice of trial . 371

On Crown delaying to proceed . ibid.

Crown tries where it pleases ..... ibid.
If distinct issues ; ibid.

a q

450 INDEX.

EXTENTS (continued).

Page

Resisting.

Verdict, &c. . . . . 871

Postea. Rule for judgment ; pleading matter after verdict 371, 2

5thly. Judgment on — (and see Judgment,) . . 372, 3
6thly. Execution,

In general . .... 373

Restitution . . . . . . ibid.

7thly. Error,

Lies; and no scire facias . ... ibid.

If reversal, &c. ..... ibid.

EXTRAORDINARY REVENUE OF THE CROWN . 237
What are the chief parts of— (See Revenue.) . . 238

F.

FAIRS.

(See Marts and Fairs.) .... 193, &c.

FAMILY (Royal).

Queen, Prince, children of King — (See those titles.) 401, &c.
After the Queen, the Prince and his consort, rest of

royal family no peculiar rights, &c. . . 405

King's prerogative as to superintending their marriages

and education ; and to what degrees, &c. . 406, 7, 8

FASTS.

» *

King may by proclamation appoint days of 54

FELONIES.

General Pardon of— (See Pardon. — Forfeitures.) . 100

FELONS' GOODS.

Not by prescription in subject . , 147, 8

FEUDAL SYSTEM 211, &c.

FIAT,

- Baron's on extents — (See Extents.)

INDEX. 4S1

FICTIONS OF LAW.

pacr_

Do not bind Crown Qo,

FIERI FACIAS.

Extent, bow it operates against— (Sec Extents.) . 2SS, &c.

FINES.

On offenders, &c. go to King, when . 2S6

Go to Crown instanter, and may be levied on levari
facias, though sentence be also imprisonment forcer-
tain period, and further till fine paid . 36O
Grants of them restrained «... 236 7
Before conviction bad . ,«

117U " ******

When remitted, Attorney-General makes entry . 360

Remedy to recover . ...,

On Quo Warranto ... 337

FINE by King,

Should be by render, not writ of covenant . 340

FIRST FRUITS .

FISHERIES and FISH— (See Seas.)

Freedom of public right as to ; and King cannot restrain 142, 3
Private prescriptive right in branch of sea good, but re-
strained as to jura publica . ... ibid.
Private fishery ... 143, 4
King no general property in fish .144
Only whales and sturgeons ; and prerogative as to these 144, 5
FLEET.

Prerogative as to n m . 46 7

(And see Pressing)

FOREIGN STATES.

Prerogative in general as to ... $

Prerogative as to, why in King alone . . .39

Licence to reside therein • . $4

Subject not obliged to go to . -•...-.... $1

oo2

432 INDEX.

FOREIGN STATES (continued).

Page
King may compel his subjects to return — (See Ne exeat

Regno. ) . . . . 21 & 24

Consequences of not returning from, King's interest and

fraudulent assignment, &c. . . . . 24, 25

Contempt for not returning . . .24

FORESTS.

What are ; prerogative as to; grant of ; and rights of

grantee . . . . . 137 to 140

FORFEITURES FOR OFFENCES.

Ground of inflicting ; necessary, especially in treason ;

disabilities extending to posterity when unjust 213, 4, 5

Difference between, and escheats . . . 215, 6

What forfeited for treason, and what not • . 216, 7, 8
Interest taken by King, and effect on inferior rights

of others .... . 218, 9

Petit treason and felony ;

What forfeited for ; chattels interests, profits of land
and goods ..... 219, &c.

Year, day and waste ..... ibid.

Corruption of blood and forfeiture of lands after death

abolished, except in treason, petit treason and murder 220, 1
Forfeitures of realty not vested till attainder . . 231

Rights of Crown on outlawry . . . ibid.

Of lands, has relation back to time of offence, so as to
avoid, &c. ; how as to mesne profits — (See Mesne Pro-
fits.) . . . .... ibid.

Time of offence, what to be deemed . . . ibid.

Of goods generally and for what offences . 222, 3

Of choses in action . . ... 223

Where another interested with the offender . . ibid.

Goods forfeited on conviction . . 224

Of goods, no relation back unless fraud . . . ibid.
Restraints on offenders aliening goods, &c. to defeat
Crown ...... 224, 5

King's pardon of the offence will not prevent escheat to

subject .... . . . 225

INDEX- 453

FORFEITURES FOR OFFENCES {continued).

P*ge

Of offices— (See Offices.) . . . 85 to 88

Against revenue laws ; vest instantly 226
But this prerogative right may be lost by a judicial sale

in Admiralty of same article as a derelict . 296

Of lands purchased, &c. by alien . 229

Grant of forfeited lands by King to relatives . 235, 6

Grants of before judgment bad ... 385

King's grant cannot create a forfeiture . . ibid.

FORTIFICATIONS.

The King may enter on lands of subjects to make them,

when . 49

FORTS.

Prerogative as to making .... 45, 49

FRANCHISES.

What are ; definition and list of . . 118, 9

Formerly too many granted . .119

King alone fountain of . ... ibid.

Cannot destroy them when vested . 1 19, 125, 132

By prescription, what evidence of .138

How they pass, by what words, &c. — (See Grants.) 392

FRANKPLEDGE 120

FRAUDULENT CONVEYANCE.

To defeat King on forfeiture . . v 225

FRAUD.

Statute of, whether Crown bound by . 285 & 366

FREE CHAPELS.

(See Chapel.)

FREE CHASE.

Prerogative as to . • . 1 .140

King cannot make over subject's land without assent . ibid.

45* INDEX.

FREE WARREN.

Page
What it is,; franchise of; and prerogative as to .a 141, 2

Not liable to escheat . . ... 233

G.

GAME.

Whether King has sole property in . . 134 to 137

Xing cannot make over subject's land without assent . 140

GAOLER.

Grant of office of, in fee . . 82

GAOLS.

Property of King in general . . . .103

By whom governed • . ... ibid.

King cannot grant custody of offenders to private person ibid.
Making new ones ..... ibid.

GAVELKIND.

Custom of, binds Crown .... 380

The lands subject to do not escheat, though they are

forfeitable for treason . .... 233

GENERALISSIMO.

King is . . 44, 5

(See War and Peace.) .... 25

GERMAN TERRITORIES.

Prerogative in .93

GIBRALTAR.

«

Prerogative therein ... 29

INDEX. 455

GOODS.

Page

Of King

Cannot be wrecks . . 150

Est rays — (And see Distress, fyc.) . . .152

General nature of property in — (See Personalty.) t 341, 2, 3

Chattel interests of King may go in succession 208
Of Crown debtor, how far liable on extents, &c. — (See

Extents.) ..... 284, &c.

GOVERNMENTS.

Origin and different forms of, &c. . 1

English government . . . .2

GOVERNOR.

Of colonies,
His powers, &c. — (See Colonies.) . .. 34, 5, 6

GRAND SERJEANTRY.

Tenure by . . . ... 81

GRANTS FROM KING.

1. What good, c}c.

Not high prerogatives ; as assenting to statutes, par-
doning, making officers, &c. &c. . . . 384,5

Bad if they cause failure of justice, &c. as general

exemptions from civil liability, &c. &c . . 385

Bad grants of forfeitures, &c. infuturo . . ibid.

Bad if create a forfeiture, or tax, subject and in-
stance8 . .. 385,6

Grants of toll when good . v .. 335

Bad if contrary to common, or statute, law . • ibid.

Of letters of marque *\ . .40

Courts and offices J . .75, &c.

Franchises t 118 to 155
Crown lands and possession^— {See those Titles.) 263, &c.

Crown copyright f . . 338 to 341

Protections . 1 . . 282 to 284

Lands seized under offices J ... 253, &c.

456 INDEX.

GRANTS FROM KING (continued).

P*gt

Revenue, grants of, restrained . . . 387

Choses in action assignable by and to Crown, when;

and prerogative herein . . . . 387, 8

King may grant contingency or mere possibility, and

exemption from future liability, when — (See £r-

emptions.) . . . # 388, 9

Not an annuity, when .... 389

King cannot grant to stranger lands seized and

claimed by him till after office found and returned 253, &c.
But the subject claiming is on certain terms entitled

to a lease or grant of the lands in dispute . 255, &c.

2. Grants from and to King, haw effected.

By record only in general as to realty . . 389, 90

How letters patent obtained and ceremony . . 390
When record not necessary to transfer from Crown 390, 1
In general Crown takes by record only ; when other-
wise .... 391

3. Construction of— uncertainties, misrecitals, deceit, fyc.

General rule of construction . • 39 1 , 2

General grant does not pass royal franchises, &c. . 392
What not under word "appurtenances" . ibid.

Shall not operate to two purposes not expressed ; shall

not operate presumptively, and instances . 393

A liberal interpretation . • • 'bid-

Especially if grant be ' by royal grace, fcc/ . 394

Or for valuable consideration • • • ibid.

If capable of constructions and one void . . ibid.

Uncertainty, avoids, and instances % • • 394, 5

Aliter if capable of being reduced to certainty . 395
Rules as to necessity of noticing existing interests, &c.

in granting reversion . 396, 7

Mistaken conclusion as to King's title, or as to unim-
portant consideration, &c. how it affects grant 397
Misrecital as to thing for King's benefit, or real con-

sideration, its effect . • • 397, 8

Difference whose misrecital . • *97

INDEX. 4«

GRANTS FROM KING {coatmaed).

Page

King misinformed not deceived 398

Other rule*, kc. 397, 8, 9

4. Rights, $c. of grantee.

Not peculiar, except of chose in action, kc. . 399

5. Avoiding royal grants.

The remedy— (See Scire facias to repeal, #c.) . 400

King in general bound by, and when otherwise

119,125,132,400

Void or injurious to subject, scire facias to repeal 330, 1

GUERNSEY (Isle of.)

Prerogative in . . • 38

Whether extent in. . .34

GUNPOWDER.

King's prerogative right in • • . . 49

H.

HAVENS.

(See Ports and Havens.) 174,5

HEIR.

How far liable for ancestor's Crown debts . 298, 99, 300

HIGHWAY.

King may distrain in — (See Lands.) 309

HONOURS.

{See Peerage.) 107

Cannot legally refuse any, if offered by the King 319

HOUSES OF PARLIAMENT.

CSee Parliament.) . . • . . 67

458 INDEX.

HUSBAND AND WIFE.— (See &uecn.)

Page

Attainder of husband, prerogative as to forfeiture, bow

it affects wife .... 217, 18

Joint term of cannot be taken by King after husband's

death . . . . 286,7

I.

IDIOTS (See Lunatics.)

Who are, and prerogative as to care of, as parens patria 157
Difference between them and lunatics . .159

Statute of Ed. 2. . . . 157

Generally, but not necessarily, in Chancellor through

Crown . . .158

Chancellor's power from Crown . . ibid.

Jurisdiction though idiot or his property abroad . 158

Guardian of, nature of his interests and rights . 158, 9
King avoids his acts, &c. • . . .160

IMPORTATION.

King cannot in general restrain — (See Gunpowder.) 163 to 170
Licence, &c. to trade with enemy . . 170 to 173

INFANCY.

Of King, no disability, when , . . « , 37G

INFANTS.

Prerogative as to, as parens patria • 155 to 157

In chancellor from Crown . 155, 6

Appointment of guardians for . • . 156, 7

Chancellor protects infants' interests and rights, and
when ...... 157

Will assist guardians in their rights . . . ibid.

INFORMATION.

Prerogative remedy in nature, of civil action . 332

1. Of intrusion; 2. of debt; 3. in rem . . ibid.

Of intrusion — (See Intrusion.) . 332 to 335

INDEX, 459

INFORMATION {continued).

Page

Of debt in nature of Crown action ', remedy on revenue

forfeiture; compounding it, &c. . , . ZS5

In rem to recover goods themselves as derelict, &c. ibid.

What title or interest subject must shew 334

What objection waived by attorney-general not demur-
ring • .. . * ibid.

Cannot plead double . . . ibid.

Crown may reply, traverse several matters in plea, &c. —

{See Pleading.) . . . . ibid.

When King may waive count and declare de novo . ibid.

In nature of quo warranto • 337

INHERITANCE. (See Descent.)

INJURIES.

By King to the person, no redress . . . 340

AUter to property — (See Remedies.) . . ibid.

INQUESTS OF OFFICE.

(See Inquisition.) .... 246, &c.

INQUISITION.

A prerogative remedy for King ; nature and object of 246, 7
Consequence of not having (when necessary for King)

before seizure of property . $47

Old inquuitio post mortem under military tenures 347,8

General object of inquiry as to lands . 248

Not in general necessary when King's title appears

already of record ... 248, 9

Or equally notorious . ... 249

Or possession or freehold cast on King; as descent in re-
mainder ; escheat ; temporalities of bishops vacated ;
devised lands ; alien's lands, &c. . 246, 50

Not on attainder of treason , 249

General rule when entry by subject necessary, inquisi-
tion for King is so . • 249, 50
When necessary on clause of re-entry in Crown lease 250

460 INDEX.

INQUISITION (continued).

Page

Necessary for lands of idiots, &c. year day and waste,
temporalities, &c. forfeited for contempt, enemy's
choses in action . . . . 250

Actual seizure, or scire facias, when alio necessary 250, 1, 2, 3
Some matter of record also necessary to divest estate in

King ... . . 253

When otherwise . .... ibid.

Restraints on Crown grants to strangers, of lands seized
and claimed by King, before inquisition found and re-
turned ; and when such restraints hold, &c. . 253, 4, 5
The defendant, claimant or traverser against King en-
titled to a grant or lease, and on what terms, &c. . 255, 6
Prerogative as to mesne or intermediate profits and is-
sues ..... 257
Requisites of inquisition as to finding of whom lands,

holden,&c. . ... 258

If finding not satisfactory, King may have a melius in*

quircndum, when, &c. — (See Melius inq.) 258, 9

General rule, inquisition not necessary for King claim-
ing personalty .... 259
Coroner's jury, an inquisition for this purpose . ibid.
Escheators where to sit, and as to return of inquisition ibid. 60
To find Crown debts under commission for extent 265-, &c.
Nature of and proceedings on such commission, && —

(See Extents.)
Setting aside partially, &c. ; and fresh writ thereon 364

Subject traversing or disputing them — (See Traverse qf

Office— Extents, resisting.) . • 356, &c.

Persons holding copyhold terms, &c. and having rents,
commons, fees and profits apprendre in lands claimed
by Crown; protected though their interests not found
under inquisition . 351, 2

INSOLVENT.

Not to be released on extent . . 284

Extent against— (See Extent.)

Statutes relating to do not bitid Crown . 366

INDEX. 461

INSURRECTION.

Page

In case of, King may command subject's assistance 18, 49

INTERPLEADER.

Where conflicting claims against Crown prerogative as
to parties interpleading . ... 361

INTRUSION.

>

Information of intrusion, in nature of action for trespass 338, 3

Form of ... . . .332

In what Court and county * . . 333

The general issue when improper . ibid*.

Miter by statute ... ibid.

Judgment and damages in . . ' 334, 5

Stranger not bound by the judgment . . . 335

INVASION.

King may command personal services of his subjects 18, 49

IRREGULARITIES.

In extents, &c. — (See Extents, Resisting.) . . 362, &c.

IRELAND.

What laws and prerogative in 27, 8

Statutes when bind . . 27

ISSUE.

King waiving his . 369, 70

J.

JERSEY (Isle of.)

Prerogative in ... 28

JEWELS OF CROWN.

Are heir looms, &c. ... . 238

Whether King may grant them . ibid.

JOINT TENANTS.

King and subject cannot be . . . 210, 11

King and a subject as to personalty when • 241, 2

8

♦62 INDEX.

JOINTURE.

Wife's) jointure not liable to Crown debt* when . 300

JUDGES.

Chief, and others, how and by whom appointed . 76, 8

Hold during good behaviour . . 82, 3

Do not lose their situation by demise of Crown 81

How removed ... . ibid.

Legal advisers of King, &c. . . 409

JUDGMENT.

Court to give ex officio for King, where his title appears

though inter alios ... 244, 373

On extents, rule for . . .371,2

Necessary to have award of amoveas manus and why 372, 3
For subject to recover lands is amoveas manus or ouster

le main . S48, 9, Sec.

Without it lands remain in King, it puts King out ibid.

Alone sufficient to enable subject to take possession ibid. 50
Ouster le main to King's patentee of the lands . 349

Amoveas manus where several recover • 350

If subject misuse the amoveas manus, King may reseize,

when and how . . . . . ibid. 1

Judgment for subject always general reservation of

King's right . . . 348

JUKE P0STLIM1NII.

Former charter rights revive on King reconquering a
colony, &c. . . .38

JURY.

Persons cannot refuse to serve on 19

King may exempt a person from serving on .20

JUSTICE.

King, fountain of . 6, 75

King cannot now personally administer . . 75, 6

Courts of— (See Courts.) . . • .75, &c.

INDEX.

463

JUSTICES OF THE PEACE.

By whom appointed

How and when their authority may be determined
As to excluiive jurisdiction of borough justices
May administer oaths of allegiance •

P*fe

79

80

190,7

17

K.

KING.

(See Executive Magistrate— Legislative Authority— Par-

liament — Prerogative — Remedies for — Sfc. )
Attributes of . ...

Perfection . ...

Perpetuity . . ...

Who is (See Descent of Crown.)
De facto and de jure .

Titular

Who may exercise prerogatives — (See Prerogatives.)

Cannot transfer Crown •

Resignation of

As parens patria — (See Parens Patria.)

Privileges and incapacities of— (See those Titles.)

A sole corporation

So as to lands — (See Lands.)

5

ibid.

ibid.

9

10,11

11

9,&c.

12

ibid.

155

132

208

His personal property when subject to his will and debts 24% 3

KING'S BENCH (Court of ).— (See Courts.)

As to its visitatorial power . . . 131
Will bail offenders when they have legal right to pardon . f5
Will put off trial of offenders where they have equita-
ble claim to royal mercy . . . ibid.

KING'S EVIDENCE.

Where admissible ; not entitled to pardon . ibid.

KNIGHTS.

Knighthood offered by King cannot be legally refused 19

464 INDEX.

KNIGHTS (continued).

Paje
Degrees of and how created . . . 116, 7, 9

L.

LACHES.

(See nullum tempus, $c) . . , 379, 9fr

LANCASTER (Duchy of.)

Crown lands in . 296

Distress in . . . 909

LANDLORD.

Claim for rent how affected by extent . . 287

LANDS, CROWN.

Antiently extensive ... 202, S

How reduced ..... 203

Interference of parliament and statute of Ann . ibid.

Restraints on transferring ; when cannot be granted \ for

what period and how . . 203, 4, 5

Crown lease ... ibid.

What lessee must be bound to observe 204

Private lands of King, when grantable, devisable, &c. ibid.
When taxable ..... 204, 5

Primd facie, King takes jure corona • . . 205

Descend as and with Crown — (See Descent.) . 205

When not . . . . 206

When King takes and holds in private capacity . ibid.

Lands under seas ; maritima incremtnla ; derelict ; shores;

&c {See Seas.) 266 to 209

King sole corporation is to; takes chattels in succession ;

fee without ' heirs' or ' successors' 206

Distress for rent due to— (See Distress.) . . ibid 9

Rents out of— (See Rent.) ibid. 300

Land to King and subject ; how King takes 910

Cannot be joint tenants, but may tenants in common ibid. H
Conveyance by Crown in fee, restraining alienation

386, note (A)

INDEX. 465

LANDS.

Page

From what time liable to Crown debts, and what interests

and titles Crown may take — (See Extents.) 293, &c.

How far liable to extent against subjects' judgment, &c.

(See Extents.) ... 300, &C?

Sale of on Extents— (See Extents.) . . 307, &c.

Forfeiture of — (See Forfeiture.)

Grants of lands claimed by Crown restrained . 253, 4

King's estate is how divested . • . 353

Remedy to recover against Crown — (See Remedies
against Crown.)

LAWS.

Administration of, not by King personally • . £65

LEASE AND RELEASE,

King cannot convey by ... 378

LEASES FROM CROWN.

(See Lands— Rents— Distresses.) . . . 203, 4

As to demand before entry . , . . 210

Inquisition when necessary before Crown can act under

clause of re-entry on non-payment of rent . 250, 55
Of lands seized and claimed by Crown, should be to sub-

ject claiming, &c. on what terms . . 255, &c.

LEET COURT . . 120

LEGISLATIVE AUTHORITY— (See Parliament— Colonies.)

Kept separate from executive and why . . 2

King necessarily has share in legislation . . ibid.

Nature of King's legislative authority . 3

LETTERS PATENT.

Ceremonies in obtaining— {SUt Grants— Patents.') 389, 90

LEVARI FACIAS.

To recover fines for misdemeanors — (See Fines.) . 260

Oh indictment for not repairing . . . ibid.

H H

466 INDEX.

LEVARI FACIAS (continued).

Fage

On an outlawry • • • . 961

Taking stranger's cattle, &c. . .261, 287, 8

Against beneficed clerk for his lands instead of extent 297

Sheriff entitled to poundage on, for Crown debts .312

LEX MERC ATOM A.

(See Commerce.) ..... 163

LICENCE.

To subject to remain abroad, whether revocable, &c. 24

To enemy to come here . • 48, 9

To trade with enemy . 171, 2

LIEN.

Of Crown on exciseable goods . . 293

Equitable, does not hold against extent . * 303

LIGHT-HOUSES.

Prerogative as to erection of, and where, &c. . 175, 6

By Trinity-House . . 176

LIMITATIONS.

Statute of, does not bind Crown • . 366

Does not affect dignities • . .116

LORD CHANCELLOR— (See Chancellor.)

How he holds his office . • . .82

LUNATICS— (See Mow.)

Prerogative as to, as parens pairia . . . 159, 60

In Chancellor from Crown and how . . ibid.

Difference between and idiots • . . 159

Ct Crown interest in lunatic's property . . . ibid.

{ . ;•;■ Mad-houses by statutes • . . • ibid.

u Inquisition fiodmg Uuiacy* and )iow . . 160

Whether necessary . . . , - , . . ibid. 250
7

INDEX.

467

LUNATICS {continued).

Who appoiuted to mind ...

Care of property, and allowance for lunatic
Abuse of a contempt

His act* avoided by King, bow, and relation back)
Death of, effect on guardianship, &c.

Page
160
ibid,
ibid,
ibid,
ibid.

M,

MALA PRAXIS.

Crown may pardon

MAN (Isle of.)

Prerogative in

92

88

MANDAMUS.

Prerogative remedy to compel public officer to perform
bis duty, &c. ..... 338,9

MANIFESTATION OF RIGHT.
(See, Monstrans de droit.)

MANSLAUGHTER.

On conviction of, King may pardon burning in hand

MARITIMA INCREMENTA.

In King— (See &«.) . . *

359

90

306,7

MARKETS AND FAIRS.

#

(See Marts and Fair*)

MARKET OVERT.

King not bound by sale in
A shop cannot be made

MARQUE AND REPRISALS.

General right to make reprisals •

Why King alone can grant • .

Prerogative if reprisals without King's authority
Bowers under to what restrained

hh2

. 195, and 285
.194

40

40,1

41

ibid.

468 INDEX.

MARQUE AND REPRISALS {continued)..

Page

Effect of power under . . 41

Ancient form of granting . . 41, 2

Grant of by admiralty . . 42

How vacated .... ibid.

King's right to release prize . . . ibid.

MARQUESSES.

Origin of the title— (See Peerage.) . 108

MARRIAGES. (Royal.)

■

Prerogative as to regulating marriages of royal family,

and to what extent, &c. . . . 406, &c.

Act relating to ... 407, 8

MARTS AND FAIRS.

Use of and why King alone grants, &c, . . . 193
When and how subject may have . . . ibid.

King alone judge where to be held . . • ibid.

If charters do not state where . 193, 4

If injurious to an antient mart, &c. . . 194

When owner of latter barred . . . ibid.

Market overt, a shop cannot be made . . ibid.

King not bound by sale in market overt . 195 and 285

General grant, what grantee takes and what not 194, 5

Not toll in general . ... ibid.

. Toll to be reasonable ; grant of, how, and when, made 195
Forfeiture of, or liability to be seized, for taking unreason-
able toll . . . 195, 6
Or by not duly holding them . . 196

MAXIMS.

King never dies ..... 5

King can do no wrong . .5, 339, 40

Nullum tempus occurrit Regi . . 379, 80

MELIUS INQUIRENDUM.

Or second inquiry when insufficient finding ; lies for

King, when, kc. . . 258, 9

After inquisition under commission on extent .271

1 1

I

INDEX- 469

MEMBERS OF PARLIAMENT.— (See Parliament.)

Page

Privilege from arrest .... 409

MERCHANTS.

Foreign — (See Aliens.)

Coming here .... .49

MESNE PROFITS. .

Peculiar prerogative of King as to intermediate profits
of lauds to which he is entitled . . . 257

MILITARY TENURES.

{See Feudal System.) .... 211, &c.

MILITIA.

King's power over ... 45

MINES.— (See Money.)

Gold and silver, prerogative as to . .145

Prerogative where only part gold or silver . 145, 6

When may be in subject » 146

MINISTERS.

Responsibility of King's .... 8

MONEY.— (See Mines.)

Prerogative as to . .196

Foreign Money .... ibid.

And proclamation legitimating jt « .198

Materials of . . . ... 196, 7

Stamping or impression of 197

Denomination or value .... ibid.

Changing weight or alloy . 197* 8

Sums of money of Crown debtor may be taken on ex-
tent ... . «84

MONOPOLIES.

Void and why— (See Patents.) . fe '. 176,7

470 INDEX.

MONSTRANS DE DROIT.

Paf*

A statutable remedy against King . . . 359

To remedy hardships on petition . • . 341

When may be brought .... 352, 3

General form of . 353

In general proper remedy where subject confesses King's

claim but avoids it . . • 353

When otherwise . ... ibid.

Subject must shew, and rely, on his own title • ibid.

Lies though King entitled by double matter of record 353, 4
Proceedings upon • • . 35% 4

Judgment on . . 354

Whether subject on is to be deemed a plaintiff or de-
fendant .... 354,5,6
Nonsuit on ..... 354

MORTGAGE.

Under extent may take equity of redemption . • 296
Mortgagee protected on extent against mortgagor, &c.

ibid, and 309, 360, 1

Before Crown lien good 298

Equitable, not good against extent . . . 303

Attainder of mortgagor, its effect . . 217

Effect of escheat, &c. of mortgaged land* . . 233, 4

MORTMAIN.

Licence of King necessary to enable corporation to hold
lands in • . 131

MOTIONS.

To set aside extents to pay money, &c. upon — (See
Extents, raining.) . • 369, &cv

MURDER.

King may pardon, observing certain peculiar forms 91, 99, 10O

INDEX. 471

N.

NATURAL BORN SUBJECTS.

(See Aliens.) . • • • .13

Who are . • i - • lsi 14

NATURALIZATION.

King cannot effect it ; and bow it may be dene * 14

y& EXEAT REGNO.

General right of subject to remain here . 31
And to go abroad ; but King's power to restrain it, and

to recal ; and b y what meant • 31
Origin of ne exeat regno as a state writ ; and by whom

granted, &c. . 91^,3
May be issued by the Chancellor at the request of the

Secretary of State • 31

Gradually Chancery process to secure private debt . ' . 33

Only equity debt • . 33, 3

Must be a bill filed 33

Affidavit of debt, &c. to ground it ; and requisites of

affidavit . .' . . . 33, 3

Defendant must give security, &c. and how . . 33

Under what seal, &c. and how directed . . 33, 4

NEUTRALS.

Assisting enemy with articles contraband of war 173

NEW SOUTH WALES.

Governor of, may by commission under great seal, re-
mit whole or part of term for which offenders trans-
ported . . .90

NOBILITY.

(See Peerage.) . . . ... 107

472 INDEX.

NOLLE PROSEQUI.

Page
By Attorney-general . . , 245

In colonies . ' \ . . 33

NON OBSTANTES.

(See Dispensations.) . . . «, . 95, 6

NONSUIT.

King can never be . . • . . 24, 5

NON USER (of office).

Office how forfeited by ... 86

NUISANCE.

As to power of King to pardon . . .91

NULLUM TEMPUS OCCURRIT REGL

Instances . '. . 379, go

When 60 yean bars King ... 380

Prescription bars King , . . . ibid.

o.

OATHS.

(See Allegiance.— Supremacy — Abjuration — Offices.)

OCCUPANCY.

Prerogative as to . . . 135 to 137

OFFICE,

Or inquisition, or inquest of office, to entitle the Kipg
to lands, &c. — (See Inquisition.) . . 246, &c.

OFFICERS, (Public.)— (See Offices.)

Must take oath of allegiance . . . « 1?

INDEX.

47$

OFFICERS, (Public.) (continued).

Pago

18

Refusing to lake oath of allegiance disabled to sue, &c.
Judicial — (See Courts.)

Appointed by King ... 76

Chancellor and judges • . . • 78

Ministerial, public

Named by Crown . . ... 80

Crown debtors holding public offices ; their liabilities to

King, and from whence their hands are bound 270, 294, 5

OFFICES, (Public.)— (See Officers.)

Judicial — (See Courts.)
Ministerial, public.

What new public ministerial offices are good and what
not . • . • 80, I

Oaths to be taken by persons admitted into . . 16, 17

. King may compel his subjects to serve in . • 18, 19

When King may exempt from serving in 90

Not compelled to serve if refusal of oaths be conscientious 19
Crown cannot create new offices with new fees, or annex

new fees to old offices, this only by Act of Parliament 81
Honorary offices . . ibid.

On granting offices sub-offices cannot be reserved to King ibid.
Must be granted according to immemorial mode of so

doing . 81, 2

When grantable in fee 82

Judicial offices not grantable in fee, in reversion, or for

years; when and why 82

Alitcr ministerial offices .... ibid.

Grantable at will . ibid.

How altered as to judicial offices . ibid.

Such generally holden daring good behaviour . 82, S

Demise of Crown, effect on offices .83

Offices when grantable to two persons - . ... ibid.
Mental or other, incapacity, when disables party to hold

public office . . 83, 4

When no objection, and how obviated . 84, 5

Grant of, under what seal, &c. and what words ibid.

474 INDEX.

OFFICES, (Public.) (continued).

Page

Lost or vacated by, 1. Misconduct ; 3. Acceptance of
incompatible office ; 3. By determination of subject*
matter of office . . . 85

Implied condition to execute duly . • • ibid.

Abusing an office . . • « • ibid.

Non user of offices vacates them when 86

Refusal to perform duties of, when a forfeiture . ibid.

When these forfeitures bind others, and whom • . 86, 7

On forfeiture, what step necessary to oust officer . 87

King nominates to, on illegal sale of &c. creating for-
feiture, without inquisition • • • 359

Lost by acceptance of another incompatible office ; and
instances .#..•• 87, 8

Lost by destruction of subject-matter, of office, and in-
stances • .. ♦ 88

Pardon of illegal sale, &c. of does not enable party to
hold . . . • .93,5

ORDERS IN COUNCIL 172

ORDINARY.

King may grant exemption from visitation and juris-
diction of . • • • *3

OUSTER LE MAIN.

Judgment of, for subject— (See Judgment.) . $48, 9,&c.

OUTLAWRY.

Forfeiture of realty on . ... • 321

Of personalty - . • • • 323

Proceeds to plaintiff in civil action . . .361

Petition to recover monies received by Crown on rever-
sal of . • • . * • * 545

OXFORD, (Chancellor of.)

His power as to making corporation • . • 128

INDEX. 475

P.

PALACES.

No judicial process executed in, &c 376

PALATINATE.

Not now grantable . . • .77

« » ■

PARDONS.

General considerations as to policy and expediency of

pardoning offenders . . . . 88, 9

Why in King alone . • . . 89

An incommunicable prerogative; except in colonies 90

King may authorize Governor, &c. abroad, to remit

sentence of transportation . . ibid*

General rule as to instances in which right to pardon holds ibid.
Not in private wrongs and rights . . ibid., &c.

Not to prevent escheat, vested in lord . • 234

Not on attachment for not paying money, &c. . 90

Not sureties of peace for benefit of private person 91

When of penalty given to common informer • ibid.

Of murder, rape, &c. • . . ibid.

Of common nuisances * . . ibid.

When of suits, &c in ecclesiastical courts • • 92

Not for illegally sending subject abroad • ibid.

Not pleadable in bar of impeachment by House of Commons ibid.
Of simonist or illegal sale of office; but does not enable

either to hold . . . » ' ibid.

When party entitled to party

Approvers • . • .93

Offenders discovering others . . . 94

On killing accidentally • • • ibid.

If promised a pardon . • • ibid.

Persons admitted to be King's evidence not entitled to pardon 95

If entitled to pardon, bailed to get it . • ibid.

As to dispensations or nan obstante*— {See Dispensations.) ibid.

On pardoning King may annex condition — breach of 96

Partial exercise of this prerogative — remitting part of

sentence . . • 96* 7

476 INDEX.

PARDONS (continued).

Page

How granted, under what seal . .98

Under sign manual . ibid.

At the Assizes or Old Bailey . . . ibid.

Pleading a pardon . . . 98, 9

Omission to plead it . . .99

Charter of — statement of facts and requisites therein 99, 100
How to be drawn in treason, murder or rape ibid.

Construction of charter of pardons . .100

Pardon of principal, or of several, or generally, how it enures ibid.
Pardoning the act, pardons consequences, when 100, 101

On pardoning, sureties may be taken, and how, but not

usual ...... 101

Effect of pardon .... 103

Offender's property not restored unless clause of restitution 102
Its effect as to corruption of blood — (And See Forfeitures.) 103
No implied pardon by Crown grant of lands to felon,

but grant void .... 393

PARENS PATRIJE.

King's prerogative as . . • .155

1. Infants — (See Infants.)

2. Idiots— (See Idiots.)

3. Lunatics — (See Lunatics.)

4. As to charities — (See Charities.)

PARISH OFFICERS.

If elected, obliged to serve . • .19

PARK KEEPER.

* Grant of office of, in fee • . 82

Office of, how lost ... 84, 85

PARKS.

Franchise of and prerogative as to . 140, 141

PARLIAMENT.

King's legislative authority — (See Legislative, Authority.)

King head of . . ... 3

INDEX. 477

PARLIAMENT (continued).

Page

Legally bound to serve in either House, if qualified, when

elected . . 19

King cannot exempt from serving in . . ,20

King's prerogative over Parliament . • 67

Whether King may increase number of members , . ibid.
King alone can summon, and why , . . .68

How often to be held . . . ibid.

Each Lord entided to be summoned —must attend . 69
How called together, proceedings as to election of inen>

berg of lower House : fresh election in case of death, &o. ibid.
Writs of summonses ; requisites . ,70

Cannot commence without King, in person, or by repre-
sentation . . . , „ ibid.
King cannot adjourn . . . 71
King prorogues and how . . . « ibid.
Effect of prorogation . . . . . ibid.
Session of, how ended . . . .72
Dissolution of ... . ibid.
Internally independent of Crown • . . .73
But King may be present . • . 73, 4
Proxy in Lords . . . . 74
Act of, — King's assent or dissent — this prerogative not

grantable, except in colonies — how exercised . 74, 5

Act of, may originate with King . .75

King when bound by — (See Statutes.)

Speakers of Lords and Commons how appointed' 74

As one of King's Councils .... 408

PARTNERS.

King and subject cannot be . • 241

May seize partnership goodsunder extent again>t one :
how much liable . . . . 287

PATENTS.

Monopolies void — but even at common law patents just

and good, and why . . . 177, 8

Ground of under St. of Jac. . .178

1. The Invention.

What in generat subject of patent . .178

478 INDEX.

PATENTS (continued).

Page

Comment on words ' new manufactures' . 178, 9

Novelty indispensable . . » .179
What novelty sufficient; new effect, though old materials ibid.

Addition or improvement . . • ibid.

How to have patent for improvement . 180, 184, 5

Mere principle not sufficient, when • • 180

When contrary to law in general . . . 181

Liberal construction . . • ibid.

2. The Inventor.

Who is, within the Act .... 182

3. Specification.

What it is and ground of requiring it . . 189, 3
Care in drawing it . 183

General rule as to precision, and knowledge imparted ibid.
Bad if ambiguous or can mislead — instances of 184, 5
Or it be too diffuse • . • ibid.

Or if false in statement as to process, &c. — instances 185, 6
Must give public most beneficial and least expensive

mode of using invention, when . . 186,7

No model or drawing necessary, but references when

bad i complete per «e .... 187
Bad if denomination of invention in patent and spe-
cification differ — and instances • • 187, 8
Wheninrolled ..... 188

4. How obtained . 1889 9
Caveat ..... 189, 191
If vested in five persons • , 191

v 5. Remedies, and when infringed and evidence, fyc. 191, 2

6. Vacating the patent • . • • 193

PAWN.

Goods pawned, whether may be taken under extent, &*. 285,6

PEACE.

r »

(See War and Peace.) . . m . 43, Sec.

PEERAGE AND PEERS.

The Ring only fountain of, and why . 107, 8

J

index. *n

PEERAGE AND PEERS {continued).

Different titles or degrees of nobility, and antiquity, of 108
, Formerly territorial, now personal . • 108, 9

Creation of— 1. By writ 2. By patent— prcacriptive
peerage . • ... 109

Creation by writ, how • • . . ibid.

Creation by writ, King may restrain descent of, the title 110

Otherwise descends to lineal heirs, male and female • ibid.

Summons to call up eldest son of Peer, effect of, if in
father's title, &c. • , . . . , ibid.

Creation of by patent . . . .111

When title complete .... ibid.

Restraining descent, &c. in the patent . • ibid.

Term, or interest, which may be granted in a dignity ibid.

Marriage of Peer, his wife takes title, &c. How loses it
by marrying again • 111,12

Peeress in her own right, marrying, effect on the title ibid.

Scotch Peer taking English Peerage, and vice versa 112

Precedence among Peers, grant of, &c. • . 119, IS

Title of cannot be legally refused . • 1 1 S

Cannot be lost, transferred, or surrendered, nor can
King deprive subject of his title . . 1 13, 14

Barony by writ, whether extinguished by taking a grant
of the barony .... 114

Barony whether extinguished by earldom . ibid.

Dignity or title when in abeyance, nature of, and prero-
gative herein • . . .114,5,6

Dignities not affected by statute of limitations, or time 116

Peer disturbed in his title, remedy . . ibid.

Counsellors of King .... 408.9

Cannot be arrested . • . . '• 409

PENALTIES. >

In qui tarn action. King how protected as to compound*.

ing 33$

King cannot apply contrary to directions of statute . 386

PERFECTION.

Of King ...... &

480 INDEX.

PERPETUITY.

Page

Of King . . . 5

PERSONALTY.— (Sec Goods.)

Nature of King's interest in with subject . . 241, 2

Of King, devise of, &c. . . . . 242, 3

PETITION (De Droit.)

Origin, common-law remedy for subject . . 340

Exclusively against King, riot Queen, &c. . 340, 1

Now better remedies for subject, but still applicable 341

For lands, chattel?, debts, damages, or restitution on

reversal of outlawry, &c. . 341,4,5

General rule, lies where no monstrans de droit or tra-
verse • . 342
Instances . . 342, 3

If King put another subject in possession common-law

remedy lies ..... 343

How drawn ; must stale King's titles . 345

In what Court ... 345, 6

Must proceed according to prayer of, and King's in-
dorsement, &c. .... 346,7
Scire facias, if the King has granted the land over . 347
Writs of search . . . 345, 7, 8
Pleadings — (See Pleadings.) . . . . 348
Judgment on fof lands — (See Judgment.) . 348, 9
When King may reseize if subject misuse his judgment 350, 1

v Execution if money recovered . . ' 348,9

Suppliant nonsuited, fresh petition . 349

After failure on demurrer on extents . 368

On reversal of judgment for* Crown, to recover monies 373

PHYSICIANS.

College of . . . . . . 127

Visitor of . . . .131

PIRATES.

Goods seized by, may be detained by Crown * 151

INDEX. 481

PLANTATIONS.

Page

Prerogative in — (See Go/onto.) - • 39

PLEADINGS,

On Extents, &c

By whom ..... 365, &c.

Statute of Hen. 8. allowing party to plead any defence

in Jaw or equity . 366

In general as to subject-matter of defence, pleadings

same as between subject and subject . « ibid.

But defendant cannot plead defences given by statutes

by which Crown not bound — {See Statute*.) . ibid.

Pleading general issue turn c$t factum, non indebitatus,

&c . ibid.

Defendant against whom extent issues does no{ claim

property, merely disputes debt • « 567

How his assignees, ice. plead • . * ibid.

Where extent not against immediate Crown debtor,

but against debtor of Crown debtor, &c. the latter

may plead any defence he has to debt, as against

his immediate debtor • . . ' ibid.

Instances, &c. . ibid.

Cannot plead double, but may plead, tec. separately

to distinct parts « ibid.

Equitable defences, what allowed, and how brought

forward . 368

Strangers claiming cannot dispute Crown debt • ibid.

Demurrer to inquisition . . * ibid.

"No rule on Crown to reply • • . 368

But Court will enforce replication in reasonable time ibid*
Crown need not notice plea, but may re-assert its own

title . . -369

As to Crown replying double • . . ibid*

King may traverse all facts in plea . . . ibid.

Need not maintain all his titles . . , ibid.

As to estoppel .... . ibid.

When Crown may waive issue . 369, 70

I „ Defendant capnot waive his plea, &c . . ibid*

z I

482 INDEX.

PLEADINGS {continued).

Pag«

On Extents, Sac. (continued).

Crown waiving objections by not demurring . . 570

Replication a departure from inquisition . . ibid;

Attorney-General confessing the plea when binds

Crown, &c. • . . . ibid.

Signing replication ... -* . ibid.

Rule to rejoin .... . ibid.

On information of intrusion — (See Intrusion.) . 333, 4

POOR'S RATES.

King not liable .... 376, 7

POPERY.

Usurpations of, by what statute destroyed . . 50, 1

POPISH RECUSANT.

Adjudged such by refusal to take oath of allegiance f 18

PORTS AND HAVENS.

Definition of by Lord Hale .... 174

Prerogative as to erecting, and where . . 174, 5

Claims by lord of county palatine, by owner of other

ports, and by subjects in general . . ibid.

Nuisances as to . . • .174

Duties for going to . .175

POSSESSION 6F KING.

Nature of in law and deed . ..... 251, 2

As to entry and seizure— (See Inquisitions.) . . ibid.

POSSIBILITY.

King may grant ., 388

Poundage.

On extents ......; 312, &c.

PRAYERS.

For Royal Family, alteration of -. v '« - . 54

INDE*.

4B2

PREFERMENTS (Ecclesiastical).

Disposal of belongs lo King — {See Church.) *

PREROGATIVE.— {See Analysis.)

Definition of .

Grounds of its existence

Prerogatives in general

Boundaries of ....

Restraints of • . • •

Who entitled to exercise — {See "Descent of Crown.)

King de facto

When King dejure cannot exercise them

Titular King cannot .

Roman Catholic King cannot , .

Regent may .
Where exerciseable ....

General principle, how far it extends to foreign
British dominions

In Wales— {See Wales.)

In Scotland — {See Scotland.)

In Berwick-upon-Tweed

In Ireland-— (&* Ireland.)

In Isle of Man— {See Isle of Man.) .

In Guernsey, Guernsey-Sark, Alderney, &c.

In German territories

In conquered country, and how may be

affected . . 29,30, 32, &c.

In uninhabited country, discovered and peopled by
Englishmen . . . . .30

In the colonies or plantations. — (See Colonies.) 30, &c.
Of the King, as it relates to independent states and

foreign matters — {See Foreign States.)
As to war — {See War and Peace.)
As to Houses of Parliament — {See Parliament.)
As to dignities— (See Peerage.) . ,

Copyright — {See Copyright.)
As to bona vacantia ...

JPRESQRIPTION.

Page
57

4

ibid.

6

7

8

9

10

11

ibid.

12

ibid.

25

26

ibid.

27
ibid,
ibid.

28
ibid.

32

39
43
67

238, &c.
135,6

Good against Crown

380

i i 2

484

INDEX.

PRESSING.

Prerogative right to impress

Only seamen

Not landman, and what other persons are not liable

Common-law exemptions

Prerogative and other grants of exemption •

PRINCE OF WALES.

The tide and that of Earl of Chester, origin of, do not

necessarily enure to eldest son
But King's eldest son, by inheritance and without grant,

is Duke of Cornwall ....

Nature of latter title, and Duke's right
No other peculiar privileges over the other children
Prince's dignity somewhat royal
Acts relating to him public

Grant of Crown lands to him whether an alienation
His consort, high treason to conspire her death, &c.
Petition de droit not proper remedy against .

Page
47

ibid.

ibid.
48

ibid.

403-

404

ibid~

ibid.

404,5

405
ibid.

403

341

PRINTING.

Crown no general power as to— (Sec Copyright.)

336, 9, la

PRIVILEGES.

King, fountain of, be.— (See Franchises— Peerage) 107, 118, 1 19"

Of King — (See Incapacities.)
Cannot be amerced or arrested . . 374

Which of his servants cannot be arrested, &c. • 374 to 376
No arrest in royal presence, or verge of palaces, &c. . 376
No distress on Crown lands • . • ibid.

Nonage of King not a disability . • . ibid.

Goods not liable to taxes, tolls, rates, &c. . • 376, 7
And cannot be waifs, &c or distrained, damage feasant 377
As to tithes • . . ibid*

Not bound to oiler acquittance . . 378

As to Crown lands— (See Lands.) . SOS, 209 to 21 1

May be trustee, &c. or executor . 378, 9

Nullum tempi* cccurrit regi— (See Nullum, $c.) • 379
Instances of . . « _ . S79, 80

INDEX. 485

PRIVILEGES {continued).

Page

But prescription good against King . . 380

Now Crown limited to 60 years . . . ibid.

Not bound by relations or fictions of law or estoppels 381
If rights of King and subject concur, those of former

preferred • , ibid.

. Takes whole as joint tenant when . . 241, %

As to judicial remedies, &c— (See Remedies for Crown —

Extents.) . . .245

PRIVY COUNCIL.

Nature of it . . . 409

Their number, qualifications, duty, &c« . .410

Their appellate jurisdiction in colonial and admiralty.

causes, &c. . 410,11

Their power to cause oath of allegiance to be admi-
nistered • . . . .17
Power over state offenders . . . . 411
Protection of ... ibid.

PRIVY PURSE.

Personalty of King, devise and will of it : liable to his

debts, &c. — (See Revenue.) . . . 241, 2

PRIZE.

Right of Crown to release when • • .42

PROCLAMATIONS.

Object, and former use of, and how restrained . 104

General principle when good, only to inforce enisling

law or promulgate what within King's discretion ibid.

Only can be by King ; when a subject punishable for

making , • . . 104, 5

Prerogative copyright in . ■ . 239

What King may do by in general . ; 104, 5

Commanding subject to return from abroad - . 21

Appointing fasts, &c. . .54

486 INDEX. .

PROCLAMATIONS {continued).

Page

Not good if restrains where by law no restraint allowed,

though pro bono publico . ... 104,6

How made .... 106, 7

Disobedience to, per sc, an offence , . .- 107

PROPERTY.

Nature of Crown property as to personalty with a sub-
ject—(See Lands.) . . . 241, 2

PROTECTION.

Duty of King to protect his subjects . • 7

Prerogative of Crown as to protecting its debtors 282, 3

&ot to prevent subject from suing Crown debtor to ex-

»

ecution and to have it if subject will satisfy Crown, &c. 283
Instances of granting . . . . ibid.

To Crown debtor abroad and serving King . . 284

PURCHASES OF LANDS.

From and by Crown — (See Lands, Croum.) 203 to 206

PURLIEU.

What is, and prerogative as to . . .139,40

PURVEYANCE AND PRE-EMPTION . 213

Q.

3UARE IMPEDIT.

King may maintain in B. R. . 244, 5

Against King, must be by petition 345

aUEEN.

Either Queen reigning in her own right ; Queen con-
sort ; or Queen dowager . • » 401

1. Queen regent just as King, thoogh married ; and her
husband her subject * t • . . . 401; 11

2. Queen consort in general like a feme sole and why 401

INDEX. 487

QUEEN {continued).

' Page

Queen. Consort.
Separate property and courts, may devise and take, &c.

sue and be sued alone, &c. • • • 401, 2

Petition de droit not tbe proper remedy against . 341

High treason to compass death, or violate Queen consort 402
In general subject to all laws ; but does not pay toll, &c.

but servants may be arrested, &c. . . ibid.

Ancient aurum regina, share of whales . . ibid. 3

3. Queen dowager no longer high treason, &c. * • 403

As to her marrying, &c. and dower . • ibidt

QUI TAM ACTION.

Compounding it, King how protected 334

When King may pardon — (See Pardon.)

QUO WARRANTO.

Prerogative remedy against usurper of a franchise or
public trust, &c. . . . . 336

When it lies ..... ibid*

Lies though King could not hold the usurped franchise

or office .... 336, 7

Judgment for subject . . . . . 337

Judgment for King . . . . . ibid.

Capiatur for fine . .... .ibid.

How information in nature of quo warranto, object of,

and proceedings thereon . . ibid. 8

R.

RAPE.

• »

King may pardon, observing certain peculiar forms 91, 99, 100
RECALLING subject from abroad . . . .24,5

RECEIPT.

King not obliged to offer . ... 378

RECEIVERS OF CROWN MONIES.

Who are, and their peculiar liability to Crown. 270

Time frpm which their lands, &c. are bound « . 294, 5

48fr INDEX.

RECORD.

Page

When King'* debts are of 265, &c.

Matter of, in general necessary to transfer from and to

Crown ; when otherwise — (See Grants.) • 389, 90, 91
Matter of, in general necessary to divest King of estate 25S

RECOVERY.

As to King being barred by, and suffering a . . 379

REFUSAL (of office.)

To execute office when a forfeiture . , * 86

REGENT.

Appointment of a . . • 12

RELATIONS OF LAW.

Do not bind King . 981

RELIGION (See Church )

King cannot alter in this country or any other parts of

his dominions . . • . .51

REM.

(Vide Information in). . «... 335

REMEDIES FOR KING.

May waive prerogative remedies . . . 244, 5

King may sue in what Court he pleases . • . ' ibid.
Suits involving his Majesty^ interests, though he be not

a party, removable into Exchequer . • ibid.

Entitled to judgment, if bis title incidentally appear

inter alios . • * 244, 372

To be made a party where concerned . • 244

Why provided with extraordinary remedies . • ibidf.
List of remedies :

1. By Action; 2. By Inquisition, and of Extents,
diem clausit extremum ; 3. By Scire facias to repeal,
&c; 4. By Information; 5. By Quo Warranto;
8. By Mandamus— (See those titles.) .♦ - . • «.. 245

INDEX.

489

REMEDIES AGAINST KING.

Page

In general 339

No action maintainable against King . ibid.

1. Petition ; 3. Monstrous de droit; 3. Traverse of

office— (See those title$.) . 340

None for personal injury by King . , iWd*

RENTS.

(See Land* — Distress.) .... SOS* -&c«,

King may reserve out of incorporeal inheritances . 209

And to stranger, but not to removable officer, when ibid.

King need not demand previous to re-entry, when/ but

grantee must .... 310,311

Landlord not entitled to year's rent under extent • 287

Rents, what Crown may take under extents . .»

RENT CHARGE.

Not liable to escheat

. 333

REPLEVIN.

On Crown distress or seizure

REPLICATION OF CROWN.
(See Pleadings.)

REPRIEVE.

Meaning of, &c.

By whom granted •

How granted

RESIGNATION OF CROWN.

RESTITUTION.

On extents .

After writ of error

209,10.

• ibid.
. ibid.

ibid.

• 13

373
ibid.

RESTRAINTS.

On prerogative

7-

9

4»o INDEX.

REVENUE.

Page

Utility of large revenue, but not if burthentome 199, 200
Why in King . . • .300

1. ordinary; or, 2. extraordinary • . . ibid.

Nature of 'antient revenue; modern different, and in

what respect ..... ibid.

Latter preferable ..... 201

Civil list, extent of .... • ibid.

Only civil list properly revenue of Crown, rest of public 201, 2

Temporalities, Corodies, Tithes of extra-parochial places,

First Fruits, and Tenths — (See those titles.)
Profits from demesne lands — (See Lands.) . 202, &c.

From profits of courts of justice, fines, &c. .- . 23G

Grants of these profits restrained « • . 236, 7

Forfeitures— (See that title.) . . . 213, &c.

Franchises — (See that title.)
Extraordinary ;

Nature of, since new system of finance . . 237, 8

Chief parts of extraordinary revenue . - . . 238
Pecuniary forfeitures sued for by information of debt, &c. 335
Ships, &c. forfeited, information in rem . - . ibid.

King's rights as to part of penalty in qui tarn action . ibid-
Personal ty of King; devise of, &c. . . 241, 2, 3
Suits respecting may be removed into Exchequer . 244

REVERSION.

Grant of by King, what necessary . . 396

REVOLUTIONS.

How they eventually terminate in England . . ibid.

&IGHT, (Writ of.)

For King in B. R. . . . • 244

Petition of right— (See Petition.)

RIVERS.

Prerogative in— (See Seas.) . 142,173,206,7,8

ROMAN CATHOLIC

King, cannot reign . • .. . . 12

SOYAL FAMILY.

INDEX. 491

Page

(See Family Royal.) .' . . . 401, &c.

Prayers for how alterable ■ . . ., , 54

s.

SAFE CONDUCT.

Letters of - . 48

SALTPETRE.

King has prerogative right in 49

SARK (Isle of.)

Prerogative in . . . . 28

SCIRE FACIAS.

To justify issuing of extent— (See Extents.) 271, &c.

In general unnecessary to revive proceedings in case of
the Crown .... 272,373

To repeal grants — General rule when King's grants may

be avoided on . . 330

Subject to have this remedy, when, and how 331

Where brought, and how obtained . . ibid.

Summons, &c.' thereon, no costs . . ibid.

Necessary for King as to lands claimed by him, when 252, 3

Necessary on forfeiture of office . 87

For King after judgment for the subject on subsequent

matter being discovered . . 257, 8

Against subject on fresh title accruing to King after re-
covery against his Majesty . . 357

Against King's patentee on petition . . 347

SCOTLAND.

Union with England, and prerogative in . . 28, 7

Statutes when bind • . . ibid.

• ■

SEALS.

•King's . . . 0 ... 390

Seal days m Exchequer . . . 359

492 INDEX-

SEARCH (Writs of.)

Page
On petition de droit . . # 545, 7, 8

SEAS.

Sovereignty of King over what seas . . 142, 173

Does not restrain jura publico — (See Fisheries and Fish —

and Commerce,) . . 4 . ibid.

Lands under, property of King, how far . ibid, 206, 7

Maritima increment a, or lands arising in sea, in King • ibid.
So of lands derelict, or deserted, prerogative herein . 207
So of shores of seas and rivers . „ ibid. 208

Subjects claim therein . . . ibid.

Nuisance, &c. in seas, restrained by King . . 173

Crown provides against inundations, &c . , ibid.

Ports, beacons and light-houses— (See these titles.) 174 to 176

SECRETARIES OF STATE.

Power as to state delinquents . . .411

SEIZURE.

For King when necessary besides office . . 251, &c.

SENESCHAL OF ENGLAND.

Office of, how inheritable . • .82

SERJEANT AT LAW.

By whom created ..... 118

A lawyer may be punished for not accepting that degree 19

SERVANTS.

Of King what, protected when, &c . . 374, 5, 6

Of King cannot justify under his illegal command

340 note (b), 342
Of Queen wfay be arrested . ... 408

» . • « •

SERVICES.

: King how far entitled to personal assistance of his sub-

jects— (See War.) • . . . , 18, 21

INDEX, 4d*

SET-OFtf.

Pag*

Statute of, does not bind Crown

• '•'•.• S66

When it may

. 368 and note (c)

SHERIFFS.

By whom, and how, appointed

• ■ y f O, ™

How long in office

79

Grant of Shrievalty in fee

.88

If appointed cannot refuse to act

. . .19

His duty and powers on extents, his poundage, &c— ■>

(See Extents,) . • , 280, 285, &c.

His poundage, &c. on extents . . . .$12, &c.

SHIPS OF WAR.

King cannot prohibit the building of for alien ami in this

country . . . . . 50

SHORES OF SEAS AND RIVERS.

Prerogative in— (See Sens.) . . . 17S, 207, 8

SIMONY.

In case of. King shall present without inquisition . * 259
Pardon of offence does not enable simonist to hold 92, 3

SOCIETY.

Origin of . . • • » I

SOLICITOR-GENERAL. .

Acts if no attorney-general . , 370

STANNARIES. .146

Courts .... 119,90

STATUTES (See Dispensations,)

When bind Wales, Scotland, Ireland , •. • , 26, 7

When bind the colonies . . . . 31, % 3

; King may take benefit of, though not bound unless named 382

Exceptions if for public good, justice, against fraud, &c. ibid.
Instances . • . . " *. . - Hoi-

King must take new statutable right as given .. ibid. 383
_ "No strictness of construction against subject , • . v • 383

494 INDEX.

STATUTES (continued).

v Tag*

Acts abridging Crown interests and remedies do not

bind .... - . 383

Instances .... S85, $6$

Acts to ease Crown of duties do not bind though sole
right given elsewhere » . - 383, 4

STEWARDS (High).

Office of, how inheritable . • « , 81

STURGEONS.

Prerogative as to * • • • 144

SUCCESSOR.

Takes Crown at once . . . .11

SUFFERANCE (Tenant by.)

Cannot be against King • 380

SUPERSTITIOUS USES.

King's appointment of gift . • • 161* 2

SUPREMACY.

Of King— (See Church.) . ... 58

4

SWANS.

Prerogative as to ; when subject may possess • " • 144

T.

TAIL ESTATES.

Do not escheat, though they are forfeitable for treason 233
How far liable under extent, after death of Crown debtor,

when— (See ExtenU.) . . . 298, &c

King may bar ; how . . • • 379

TAXES.

King cannot tax even English colony ; without assent of
Parliament, or representative assembly . 34,202

INBEX. 495

TAXES {continued). , .

King's grant cannot create . . * 385, 6

King's lands, when subject to . . .904,5

King's goods, not subject to . . 376, 7

Collector liabW to costs under extent . . ,311

Debt due from tax collectors, of record, &c. . 266

Collector's lands, from whence bound . 294, 5

Must be paid before subject's execution • • 293

TEMPORALITIES.

Of archbishops, &c.

Prerogative as to . . .64

Revenue of . . ... 65

1 Subject cannot have this prerogative » . ibid.
Of bishops,

Seized for bishop's offence - . . fc 65

Inquisition when necessary for King as to . . 249, 50

TENANT.

t

King cannot be, when I 378
Tenants of King — (See Lands, fyc.)

In common, King and subject may be . . *210, 11

Joint, cannot be . . . . ibid*

Joint, the survivor not liable for Crown debts— (See

Extents.) . . , . 300

TENTHS . . , . 66
TENURE.

By grand serjeanty . . . .81

TERM OF YEARS.

Seizure of under extent . • 297, 8

.TITLES (Extraparochial.)

King entitled to • • . * $5

King may be liable, but generally not so, and how 377

Grantee liable • • ; . ibid.

• v : What tithes Crown may take en extents * .* <• 29T

6

496 INDEX.

u. •■« -•

UNCERTAINTY.

. - ... **

In Crown grants, when avoids it — (See GratUt.) . 394, 5

... . .

UNINHABITED COUNTRY.

Prerogative on English peopling it . . . SO

UNION. * .■

* Of England and Scotland . .96,7

Great Britain and Ireland . . . 9?» 6

USE..

King cannot be seized to an 373

USURY . . 3ti6, 7

V.

VENDITIONI EXPONAS.

On extents— (See Extents.) ... 307

VENUE.

King may lay where he pleases . 333

vicechAncellor.

•« Holds office during good behaviour 82

VISCOUNTS.

i Origin of the title — (See Peerage.) . . 108

Visitor.

Of corporations, King's prerogative . 130, 1

INDEX. .499

WAIFS.

Page
What are .... I ■' 7 M*, 7

Belong to Crown ; and why ; without office, but must

be seized, for King . .147

No waif if not thrown away; or if goods offoejgn:.; ;

merchant ... 146* 7

Owner entitled to restitution ; when .147

May be prescriptively in subject ; but not bonaftlqnum * •'•

or fuguivorum ... 147,8

WAIVING.

King waiving his declaration . . . 394

His issue ...... 369,70

WALES.

Conquest of, &c. and prerogative therein . 96

What laws hold therein .... ibid.

Prince of— (See Prince qf Wales.) 403, &c.

WAR AND PEACE.

King has exclusive right to make . . . 43,. 4

Partial exercise of, by King . .43

Truce or capitulation . . ibid.

Impliedly, at peace .43

When actual declaration of war necessary . 44

War prerogative incident to right of making war ; King

conductor of . • v ibid.

General nature of war prerogative . ** . 50

King generalissimo . . 45, 25

Alone makes forts, &c. and where 45, 9

Militia ; power of King as to . * . 45

Army ; prerogative as to . . . .. • ; 45, 6

King cannot compel subject to enlist, or to leave realm

to fight . . . . \ ibid. 18, 21

Fleet . . . . . .46

Pressing — (See Pressing*) . . 47, &c.

Preventing egress and ingress of aliens — (See Aliens.) 48, &c.

3

500 INDEX.

WAR AND PEACE (continued).

Page
King cannot hinder building ships of war here for alien

Contraband of war ; King may prohibit — (See Ctmtra*

band qf War.) ..... 172, 3

Prerogative as to dispensing with commercial disabilities
as to enemy 170 to 173

«

WARREN.

Free . . . * . 141,2

WEIGHTS AND MEASURES . ... 196

WHALES.

Prerogative as to ; when subject may possess it . 144

WILL.

Devise of King's personalty; and requisites of his will 242, 3

WITNESS.

King cannot be in criminal cases* « . 377

Scmb. otherwise in civil suits-; and how • 377, 9

WRECKS.

Different species of . . 148

In King ; and why . 148, 9

Prerogative as to ; and when King entitled ; and when

not . .'.'.. . 149, 55

Law leas severe than formerly ; In what respects 149

In King, without seizure or office • . 150

Owner entitled to restitution ; when ; and within what

time . . • . 149, 50

Goods of King not to be treated as wrecks 150

How to be used by King .... ibid.

Y.

YEAR DAY AND WASTE.

Prerogative as to ..... 219,20

Inquisition for King necessary .... 250

O. WOODFALL, PRINTER, ANOEK. «OVRT, SKINNER STREET, LORDOV.